Territory of Arizona v. Copper Queen Consolidated Mining Co.

LEWIS, J. The description of the sixty-five patented mining claims of the appellee, by name, as found upon the original assessment-roll, was sufficient. The statute then in force (paragraph 2652, Revised Statutes of 1887) provides: “It shall be the duty of the assessor to prepare a tax list or assessment-roll, ... in which book or books he shall set down in separate columns: . . . Second. All real estate taxable to each inhabitant, firm, incorporated company or association, described by metes and bounds, or by common designation or name, if situate within the limits of any city or any incorporated town, describing by lots, or fractions of lots; if without said limits, giving the number of acres as nearly as can conveniently be ascertained, and the location and township where situate; all improvements upon public lands, describing as nearly as possible the location of such improvements. . . . Sixth. The total value of all property taxable to each, . . . and the description of real estate shall be sufficient if the same can be readily identified thereby. ’ ’ The name of a mining claim is a “ common designation or name” within the meaning of the statute. By such name the real estate may be “readily identified.” There can be no valid location of a mining claim without the selection of a name therefor. The name must be inserted in the location notice, is inserted in the patent, and the notice and patent made a matter of public record. The practice of assessing patented mines by name has obtained too long in this territory to be now questioned. This mode of assessment is a prac — 208 — tical construction of the statute, of which we may take judicial notice, and is of weight in the determination of the validity of an assessment so made. Copper Queen Min. Co. v. Territory, 9 Ariz. 383, 84 Pac. 511. The appellee was entitled to a separate assessment of its property in tracts or parcels, unless it waived that right by the list it returned to the assessor. The appellant contends that the appellee is estopped by the return of 'the property described as a single tract or parcel of land from asserting illegality in the assessment here made en masse. There is force in appellee’s argument that there is no technical estoppel in pods pleaded or proven. Centennial etc. Co. v. Juab County, 22 Utah, 395, 62 Pac. 1024. Yet the expression is frequently used in tax eases. Inland Lumber Co. v. Thompson, 11 Idaho, 508, 114 Am. St. Rep. 274, 83 Pac. 936, and cases therein cited. The Idaho court reaches the conclusion that in tax eases there should be a liberal application of the principle of estoppel in favor of upholding and enforcing an assessment against the taxpayer. Waiver is a definitive expression applicable to the action of appellee in making its list for taxing purposes. Returning its property en masse was a voluntary relinquishment of the known right of separate assessment. The taxpayer should not now be heard to complain. Kissimee City v. Drought, 26 Fla. 1, 23 Am. St. Rep. 546, 7 South. 525. Nor does the fact that the list returned was not verified by the oath of the superintendent of the mining company lessen its effect as such waiver. It is, nevertheless, a voluntary statement by the appellee of the manner in which its property might be properly assessed. State ex rel. Smith v. Cooper, 59 Wis. 666, 18 N. W. 438. The most important question raised upon the record is as to the validity of the action of the board of supervisors, sitting as the board of equalization, in raising the assessment upon eight of the group of sixty-five claims originally assessed en masse, in amounts varying from $50,000 to $1,000,000 each. The action of the board of equalization in making this raise is disclosed by the minutes following: “In the matter coming on this day regularly to be heard before the board of equalization pursuant to a notice heretofore served upon said company in writing, and which notice appears in the minutes of said board, and in which said notice — 209 — it was proposed to change and correct the valuation of said company’s property as the same appears upon said assessment-roll, by adding thereto the sum of $3,464,895, for the reason that the sum fixed in said assessment-roll appears to be too small; and this being the day and hour fixed in said notice for the hearing, and pursuant to a notice so given Walter Douglas, superintendent and agent of said company, appeared before the board in behalf of said company and made statements regarding said valuations and his arguments in reference thereto, and the board being now fully advised in the premises, finds it necessary to add to the assessed valuation of the property of said company on the assessment-roll as follows, to wit: Silver Spray mine..........................$1,000,000 00 Hoisting works and improvements on said mine.. 50,000 00 Holbrook mine.............................. 1,000,000 00 Hoist and improvements thereon.............. 10,000 00 Copper Queen mine......................... 50,000 00 Copper Jack mine.......................... 50,000 00 On buildings and other improvements......... 50,000 00 On Baxter mine............................ 250,000 00 On Atlanta mine........................... 250,000 00 On Dividend mine.......................... 350,000 00 On Rucker mine............................ 200,000 00 Stock of mdse, in C. Q. store and warehouse.... 203,520 00 Surveying instruments....................... 375 00 Horses .................................... 400 00 Assaying outfit................,............. 600 00 Or a total valuation of..................$3,464,895 00” Paragraph 2654 of the Revised Statutes of 1887 provides : “. . .. The board of equalization shall have power to determine whether the assessed value of any property is too small or too great, and may change and correct any valuation, either by adding thereto or deducting therefrom, if the sum fixed in the assessment-roll be too small or too great, whether said sum was fixed by the owner or the assessor; . . . and the clerk of the board of equalization shall note upon the assessment-roll all changes made by the board. During the session of the board of equalization the assessor shall be present, and — 210 — also any deputy whose testimony may be required by the parties appealing to the board, and they shall have the right to make any statement touching such assessment, and producing evidence relating to questions before the board, and the board of equalization shall make use of all other information that they can gain otherwise, in equalizing the assessment-roll of the county, and may require the assessor to enter upon such assessment-roll any other property, which has not been assessed; and the assessment and equalization so made shall have the same force and effect as if made by the assessor before the delivery of the assessment-roll to (by) him by (to) the clerk of the board of equalization. ...” The raise here made was never entered upon the original assessment-roll. This was a mere omission, and harmless. Wallapai Min. Co. v. Territory, 9 Ariz. 373, 84 Pac. 85. The raise was first carried into the tax-books by an entry upon the duplicate assessment-roll as follows: — 211 — — 212 — Disregarding for the present a variation in the names of the sixty-five claims, the delinquent tax-roll, the back-tax book, and the back-tax bill substantially conform to the duplicate assessment-roll, except as to certain entries of payments, penalties, and interest. It is apparent from an examination of this roll that there are in effect two assessments for the same year against each of the eight claims raised. One, an assessment, commingles with that of sixty-four other claims, en bloc; the other, separate and distinct. This is no mere irregularity. The legality of the original assessment as an entirety has been sustained solely upon the ground that the property was so returned by the taxpayer. The board disregarded such return, and the validity of its action must be determined under the statute alone. It might be argued successfully that had the board of supervisors raised the assessment upon the group, such a raise would have been valid. But the board segregated from the group certain claims, and imposed thereon an additional assessment. It is a fundamental rule of taxation in this territory that a taxpayer may pay upon any one of parcels separately assessed, discharging the lien thereon, without paying upon the remainder. Rev. Stats. 1887, par. 2676. Judge Cooley says: “When two parcels are owned by the same person, if the statute requires a separate assessment, obedience to the requirement is essential to the validity of the proceedings. It cannot be held in any case that it is unimportant to the taxpayer whether this requirement is complied with or not. Indeed, it is made solely for his benefit; it being wholly immaterial, so far as the interest of the state is concerned, whether separate estates are or are not separately assessed. And where a requirement has for its sole object the benefit of the taxpayer, the necessity for a compliance with it cannot be made to depend upon the circumstances of a particular case, and the opinion of a court or jury regarding the importance of obedience to it in that instance. That method of construing statutes would abolish all certainty.” Cooley on Taxation, p. 735. By the action of which complaint is made here, the board deprived the appellee of this right. Upon the raise being made it had the legal right to determine upon which, if any, of the claims so raised it would pay. If it determined to pay upon none, it was nevertheless obliged to — 213 — pay a portion of the tax thereon if it exercised its right to pay upon the fifty-seven claims remaining, for the tax collector, under paragraph 2676, supra (re-enacted, paragraph 3900, Revised Statutes of 1901), could not receive the tax upon less than the entire sixty-five claims, that being the least subdivision appearing on the assessment-roll. If it determined to pay upon one or more of the eight so raised, and to abandon the remainder, it would have to pay the tax upon the raise, together with the tax upon the entire sixty-five claims as originally assessed. The undisputed testimony discloses that these claims were noncontiguous, in instances which would have invalidated an original assessment, except for the return. The board in raising this assessment disregarded the original classification, which has been held good as against the appellee solely by reason of its return. The board of supervisors, sitting as a board of equalization, had no power under paragraph 2654 of the Revised Statutes of 1887 to segregate, from a tract of land returned and assessed as one parcel, a portion thereof and impose thereon an additional assessment, without first determining that such tract was improperly assessed as a whole, and causing such tract to be reassessed and raised in subdivisions in such manner as to preserve the right of the taxpayer to discharge the lien of taxes upon such of the several separate tracts as he might elect. The question here determined was neither presented nor considered in the ease of County of Cochise v. Copper Queen Co., 8 Ariz. 221, 71 Pac. 946. Upon the trial of the case, the court received all evidence offered subject to the various objections made thereto. To the offers by the plaintiff of the assessment-roll, the duplicate assessment-roll, the delinquent assessment-roll, and the back-tax book, the defendant objected upon the ground of a variance from the allegations of the complaint. The list of mining claims set forth in paragraph 4 of the complaint is as follows: “Sixty-five (65) patented mining claims near Bisbee, Ariz., as follows: Atlanta, Ace of Spades, Amazon, Baxter, Best Piece, Copper Queen, Copper Jack, Copper King, Copper Prince, Copper Bullion, Cumberland, Cave, Dividend Wedge, Ellie Coon, East Side, Prank Cogswell, General, Golden Gate, Goddard, Gardner, Hendricks, Hayes, Holbrook, Howell, Harrison, Iron Monster, Little New York, Lookout, Mammoth, Malvina, New York, — 214 — Neptune, North Star, Ophir, Rucker, Sun Rise, Space, Surprise, Silver Spray, Silver Bear, Sunny Side, Sacramento, Tip Top, Triangle, Uncle Sam, Wade Hampton, Wood Chopper, White Tail Deer, Bisbee, Belle, Isle, Columbia, Copper Monarch, Copper Crown, Copper Globe, Cuprite, Hardscrabble, Keystone, Lucky Jack, Raymond, Stars and Stripes, South View, Tack, Union, Virginia” — said mining claims consisting of 636 acres, thus naming sixty-five claims. It differs from the list shown in the assessment-roll in this: It names the “Dividend Wedge,” the “Howell,” the “Belle” and the “Isle,” which are omitted from the assessment-roll;'and it omits the “Dividend,” the “Wedge,” the “Powell,” the “Little Joker,” the “Sunrise,” and the “Belle Isle,” all of which are included in the assessment-roll; it names only sixty-five claims, whereas the assessment-roll names sixty-seven. Disregarding the discrepancy in the naming of the Dividend Wedge and the Belle Isle as a mere matter of punctuation and the writing of Sun Rise as a compound name, the error in the names “Howell” and “Powell” and the mention of the Little Joker claim in the assessment list is a material variance which would render the assessment list inadmissible in proof of the allegations of the complaint. Again the complaint differs from the list shown in the duplicate assessment-roll in this: It names the “Howell,” the “Dividend Wedge,” the “Belle” and the “Isle,” all of which are omitted from the duplicate assessment-roll; and it omits the “Powell,” the “Dividend,” the “Wedge,” and the “Belle Isle,” all of which are included in the duplicate assessment-roll. The variance disclosed renders the roll inadmissible under the complaint. Again, it differs from the list contained in the delinquent roll in this: It names the “Dividend Wedge,” the “Howell,” and the “Silver Bear,”-all of which are omitted from the delinquent roll, and it omits the “Dividend,” the “Wedge,” and the “Powell,” all of which are included in the delinquent roll. The delinquent roll is therefore inadmissible. And, finally, the back-tax book is inadmissible under the objection made, for the complaint differs from the list in the back-tax book in this: It names the “Dividend Wedge,” the “Howell,” the “Silver Bear,” the “Belle,” and the “Isle,” all of which are omitted from the back-tax book, and it omits the “Dividend,” — 215 — the “Wedge,” the “Powell,” and the “Belle Isle,” all of which are included in the back-tax book. The importance of the objections here considered is rendered more apparent by a consideration of the nature of the action. It is an action quasi in rem to fix a lien upon specific property. No personal judgment can be had. The statute (Laws 1903, Act No. 92, section 88) provides: “The judgment, if against the defendant, shall describe the land upon which the taxes are found to be due, shall state the amount of taxes and interest found to be due upon each tract or lot, and the year or years for which the same are due, up to the rendition thereof, and shall decree that the lien of the territory be enforced and that the real estate or so much thereof as may be necessary to satisfy such judgment, interest and costs, be sold, and execution shall be issued thereon, which shall be executed as in other cases of judgment and execution, and said judgment shall be a first lien upon said land. ’ ’ This statute was adopted from Missouri, and the prior construction thereof by the courts of last resort of the state of Missouri is, under well-established principles, controlling upon us. A judgment in an action to collect back taxes, differing from the complaint in the description of the property sought to be subjected to the lien of such tax, is void. Milner v. Shipley (1888), 94 Mo. 106, 7 S. W. 175; Vaughan v. Daniels (1889), 98 Mo. 230, 11 S. W. 573; O’Day v. McDaniel (1904, subsequent to the passage of Act No. 92), 181 Mo. 529, 80 S. W. 895. Nor is the admission of this evidence rendered harmless by the proof that an amount equivalent to the tax upon the property as originally assessed was tendered by the appellee in full payment of its tax, for the purpose of bringing a suit in equity to enjoin the collection of the tax upon the various raises, and subsequently paid to the county in the course of suit, and credited by it upon the entire tax claimed to be due. Assuming that it was paid and accepted as a discharge of the original tax, as appellant now contends was the fact, the amount now in suit is the tax upon the raise. Without a valid original assessment there could be no raise. The fact of payment of the original tax does not dispense with the necessity of proof of an assessment admissible under the facts alleged in the complaint. — 216 — The defendant also objected upon the ground of variance to proof of the action of the board of equalization as disclosed by the minutes of its meetings. Upon the introduction of the various exhibits showing the separate raises of each of the eight claims therein mentioned, the defendant renewed this objection. To determine whether or not the variance is material, the allegations of the complaint must be examined. Paragraph 4 of the complaint contains the only description of the property sought to be subjected to the tax lien. So far as essential the allegation is “Sixty-five (65) patented mining claims near Bisbee, Arizona [then follows the list by name as hereinabove set forth], ’ ’ said mining claims consisting of 636 acres assessed at $3,180. In paragraph 6 appears the allegation as to the raise, namely, “To the valuation of the patented mines and improvements $3,260,000. ’ ’ In paragraph 14 the pleader alleges the amount due, “all of which is a lien upon the lands and real estate owned by and assessed against said Copper Queen Consolidated Mining Company for the year 1901, as’ hereinabove set forth.” Nowhere is there a reference to the specific raise upon the eight claims against which the lien is now asserted, nor is there a further description thereof. The pray.er of the complaint was originally for a foreclosure of the alleged lien .against the tract of sixty-five claims as an entirety. By leave of the court, subsequent to the admission of the evidence under consideration, the prayer was amended to read: “That the said judgment and whole thereof be adjudged and decreed to be the first and paramount lien upon such of the aforesaid described lots, tracts, and parcels of land and real estate as the court may, from the proof, adjudge to be subje'ct to a lien for said taxes in favor of the territory of Arizona.” There was, however, no amendment of the allegations of fact upon which relief was sought. The complaint therefore alleges a raise of the sixty-five claims en iloc. The proof of raise upon eight of the sixty-five claims, upon which alone it is now sought to foreclose the lien, is a substantial variance. The trial court did not err in rendering and entering judgment for the defendant. The judgment, therefore, is affirmed. KENT, O. J., and CAMPBELL and DOE, JJ., concur.