People v. Owyhee Mining Co.

Noggle, O. J., delivered the opinion. Whitson, J., concurred. Lewis, J., dissented. This is an appeal from the district court for Owyhee county from the order of that court refusing a new trial. Judgment was rendered on the twenty-fifth day of November, 1869, against the defendants, for the sum of three thousand four hundred and thirty-seven dollars and ninety-one cents ($3,437 91) for taxes, and for eight hundred and sixty-four dollars and thirty-one cents costs of action. A motion was made for a new trial, which motion appears to have been filed January 30, 1870, and about that time overruled by the court. This ca.se is now before the court upon appeal from the order refusing to grant a new trial. Several questions have been urged in favor of the judgment for taxes in the case, and also against the same. We have decided that the order refusing a new trial must be reversed for error in assessment hereinafter set forth, and for the following reasons: We do not find that the land on which the quartz-mill and other erections are is taxed, but' the facts fatal to this case are that e‘a mill-site situated on the east side of Jordan creek, about half a mile below Silver City in Owyhee county, Idaho territory, and known as East Buby, together with a twenty-stamp quartz-mill and appurtenances, a blacksmith shop, barn, retort house, carpenter shop, laboratory, warehouse, boarding-house, office, and other improvements thereon, and known as the Owy-hee company’s mill property, valued altogether at ninety thousand dollars.” In this case the mill-site, buildings, and erections thereon, — 411 — are all listed together under the head of real estate, and no words were used to limit the interest in the lands intended to be taxed to a claim, or possessing interest, but the term used was “ a mill-site” situated, etc., together with a twenty-stamp quartz-mill and appurtenances, blacksmith shop, barn, etc. It is unnecessary to claim that the quartz-mill, and other buildings are not sufficiently described; but the description of the land does not conform in any particular to the description required under the third subdivision of the eighteenth section of the revenue act of 1869. The manner of listing the real estate should at least comply with the requirements of the fourth subdivision of said section 18, viz., “the cash value of real estate and the improvements thereon.” The land, mill, and other buildings are listed and valued in one estimate in gross. The mill-site is agreed by both parties to be a possessory interest in public lands upon which there is erected for the owners’ convenience the following personal property, viz.: A quartz-mill, blacksmith shop, barn, retort house, carpenter shop, laboratory, warehouse, office, boarding-house, and other improvements. It is proper to list and value the mill-site or land, and the immovable improvements thereon as real estate; but the quartz-mill, blacksmith shop, retort house, barn, carpenter shop, laboratory, warehouse, office, boarding-house, and other erections, etc., being movable property, must be listed, valued, and assessed under the last part of section 5 of said revenue act as personal property. By section 4 o,f the revenue act taxable property is divided into two general classes: 1. Beal property which simply means real estate. 2. Personal property. The term real property includes lands, and immovable improvements thereon, and the term personal property shall include all property except real property. By section 5 of said act, real estate, or real property is declared to mean: 1. The ownership of any land. 2. Any possessory claim or interest in land, public or private, where the title, meaning the fee, is not in the possessory claimant, and the same revenue law provides that possessory claims shall be listed to the claim — 412 — ant under the head of real estate, while personal property in section 5, aforesaid, is defined to be all houses, buildings, fences, structures; erections, or other improvements built or erected on any lauds, whether such lands be private property, or the property of the territory,' or of the United States, etc. It is claimed by the plaintiffs, that these sections of the revenue act are inconsistent. That section 4 defines real estate to be lands and immovable property thereon, while section 5 makes buildings, fences, etc., on land (both private and public) personal property, because fences and buildings are claimed by the plaintiffs to be immovable property, a part of the realty. If these two sections can be harmoniously construed so that the validity of both shall be sustained, and so that both may stand in force, then the plaintiff’s position is not sound, and the admitted errors are fatal to the case. Evidently, the ownership of land shall include all real estate, in its common law signification, where the fee belongs to the person in possession, and the personal improvements belong to the owner of the fee. This is real estate in its highest sense. Lands, tenements, and hereditaments, are included under the general term,, land. By including all leasehold estates, and all possessory claims and actual possession of public lands as the second class of realty, to be listed and taxed as such, then all improvements not immovable, such as buildings, fences, etc., put upon public lands, and all buildings, etc., put by the lessee upon his landlord’s estate, which, by the tenure of the lease, are not to belong to the landlord, are, in contemplation of the revenue act, subject to be removed off, and do, in fact, belong to the tenant; and of this character of property are buildings, fences, etc., on public lands of the United States; and all such property is to be listed as personal property to the owner of the buildings, etc., and not to the owner of the fee; and this is upon the ground, that no permanent fixture can attach to a mere possessory interest in land. Hence, this rule must be particularly followed in regard to public lands, where the fee is in the United States. — 413 — If A, is the owner of land in fee, and B. lias a- leasehold estate in the land for any term, great or small, and has a shop or any other building, or fence, erected thereon by him, and which belong to him, the land in fee, with the immovable fixtures belonging to the fee, must be listed to the owner of the fee, A., as realty; the leasehold estate of B. must be listed to him as realty, and the shop, buildings, or other improvements of B., which belong to him, must be listed to him as personal property; and where a party holds a possessory interest, or claim, upon lands belonging to the United States, that interest must be listed to him as real property, particularly showing whether it be a possessory claim, leasehold estate, or whatever it may be; but his buildings and improvements on such claim must be listed to him as personal property, with a description of the property. This construction is in harmony with the provisions of section 18, aforesaid, which provides that the assessment-roll shall contain, “a list of all real estate, improvements on public lauds, and other personal property.” All real estate extends to and includes both subdivisions of real estate above stated; all improvements on public lands means the buildings and improvements belonging to the possessory claimant, such as miners’ buildings, quartz-mills, sawmills, out-buildings, fences, etc. All personal property means all transitory personal property, of whatever nature or kind not otherwise exempt, and all but the first of these classes, are to be taken and considered as personal property. The four classes of property mentioned in the revenue law are to be listed, set down, and valued separately in an assessment roll: 1. The date of the assessment. 2. The taxpayer’s name. 3. A description of property; and this description should particularly describe each class of property as the law requires — all improvements on public lands, describing as nearly as possible the location of such improvements. 4. The cash value of real estate and improvements thereon. 5. The cash value of all improvements on real estate, when the same is assessed to a person other than the owner of said real estate. 6. The cash value of all per — 414 — sonal property,, except improvements on real estate or public lands, taxable to eacli. Tbis last class of other or transitory property is not required to be particularly described in the assessment roll; its value is only given in its column. 7. The total value of all property. ' We think when properly considered, the law is consistent, reasonable, and just; nothing seems to have been left out, and nothing need be supplied. The plaintiffs in this case seeming to admit that the revenue law has not been complied with, insist that the appellants should be estopped from denying the correctness of the descriptions given under oath by themselves to the assessor. We do not so understand the case or the law that governs it. This might be conceded to be a proper rule under section 11 of the revenue law of 1869, which provided that the president, cashier, treasurer, or managing agent of a corporation, association, or company, shall give to the assessor when demanded by him, a particular description, under oath or affirmation, of all the real estate owned, claimed by, or in the possession, or control, of such firm, corporation, association, or company, also a complete statement under oath or affirmation, of all personal property, within said county, belonging to such person, firm, corporation, etc.; which statement shall be entered by the assessor in a book to be kept by him for that purpose, etc.; if the defect in the assessment roll in this case was confined to the description of the property merely. Section 11 of the act aforesaid does not require the owner, officer, or agent, etc., to list the property, real or personal, under proper and appropriate heads, or to attach any value thereto, neither would the assessor be bound by an act of that kind, should it be done. The provisions of section 11 are enacted for the information of the assessor, which he may adopt or reject, just as in his judgment he may think proper. We can not understand from section 11 how the defendants can be estopped from objecting to the assessment in this case. The assessor is responsible for its correctness. The rule for the interpretation of statutes is, that words are always to be understood as having a regard to the — 415 — subject-matter, for that is always supposed to be in the mind of the legislator, and all his expressions directed to that end. Words are to be understood in their general signification, and when any doubt arises, although apparently the doubt attached only to a particular clause, the whole act is to be taken together, and to be examined in order to arrive at the true legislative intent. The intention of the legislature, as is clear from the whole act, was to assess and levy a tax upon the right to possess and occupy any public or private land, within the territory, and not to assess the fee in such lands, whether public or private, to the lessee or individual occupant. If this interpretation of the law is wrong, then the consequences of the law must fail, and the evil can only be remedied by a change of the law. No law of the territory can authorize the sale of the lands of the United States for taxes. Such a sale would be void. By this interpretation of the act, the assessor is required in listing the property of a taxpayer, after giving the date of the assessment, and the name of the taxpayer, etc., then to set down his land belonging to him in fee, including the immovable improvements thereon, with such a description as is required by section 18, and to assess such land and immovable improvements in a valuation, placed in an appropriate column. Then, to set down any possessory claim or any leasehold estate which he may hold, describing it as possessory or leasehold interest, so as to designate its extent and character, with a description of the land upon which the interest is held, similar to the description of the land of the first class as near as may be, where the fee is taxed, giving the value of the possessory or leasehold interest, as the case may be, without any regard to the value of the fee, which fee, if private property, must be taxed to the owner thereof, and if the fee is in the United States, then the fee can not be taxed. The buildings, structures, etc., belonging to the taxpayer, who does not own the fee upon which each structure stands, shall be listed as improvements on the public lands, and such improvements shall be described and val — 416 — ued separately from the land on wbicb they stand, and from the possessory interest therein, as the first class of personal property. As the mode of classifying property has been entirely overlooked in this case, and no words are in the description to indicate that the real estate interest in the mill-site was a possessory interest, while upon the trial it is admitted that the fee of the land is in the United States, it follows from necessity that the assessment is erroneous, for it does not substantially conform to the provisions of the statute, and must therefore be held void. It is unnecessary to determine other questions raised in this case, as the one already decided is fatal to it. The joining of real estate and personal property under the revenue law of 1869, is an error that must reverse the order in the case. This case was strongly urged upon the argument, as being a case founded upon the law so unreasonable, that it could not be complied with by the assessor. If we thought this was so, our opinion might be different. Eeally we are at a loss to understand why the assessor could not, under the heading of “Description of Property,” in the form prescribed by section 18 of the revenue act of 1869, have described every conceivable kind of property mentioned in the act. That column was provided for the purpose of describing minutely the property of the person assessed, whether it be, 1. “Eeal property,” which includes land and improvements thereon, belonging to one and the same person; or, 2. The possessory right or interest in land, less than a fee-simple estate, which must be assessed separately from the improvements on the same; or, 8. The improvements on said last described interest in lands which are classified by the act as one of the kinds of personal property; or, 4. All other kind and species of personal property. .For the benefit of the assessors of this territory, we will now on paper illustrate the filling out of 'the form given in the revenue law of 1869. Take the case of John Doe for example, who has every kind of property contemplated, as follows, to wit: — 417 — — 418 — As thei’e was evidence of personal property separately assessed in tbe case, which assessment is not invalidated by any of the objections raised, the order refusing a new trial should be reversed, and this case should be remanded back to the district court with directions to grant a new trial, according to this opinion. The order refusing a new trial in this case is hereby reversed, and the cause remanded for a new trial.