Foster v. Hart Consolidated Mining Co.

Mr. Justice GabberT delivered the opinion of the court. On behalf of plaintiffs in error, the main point upon which they base their contention that the judgment is erroneous and should be reversed, is, that the statutory provisions involved and relating to non-producing mines are unconstitutional. Incidentally, at least, they contend that these provisions in so far as they relate to the assessment of producing mines, are, also, unconstitutional, and we shall consider that question first, as, to some extent, the constitutionality of the act relating to non-producing properties depends thereon. The act of 1887 provided that a certain per cent, of the gross proceeds obtained from ores extracted from a mine during the preceding fiscal year should constitute its value for revenue purposes, and that it should be assessed and taxed accordingly. This act was considered in People ex rel. v. Henderson, 12 Colo. 369, and it was there held that the act was not obnoxious to the provisions of the constitution requiring taxes to be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and that taxes should be levied under general laws prescribing regulations which would secure a just valuation for taxes on all property. — 466 — It was also held that the method prescribed by the act for determining the value of mining property for the pur7 pose of taxation was not invalid. The reason assigned for this ruling was, that where the same method was applied without discrimination, throughout the state, to the valuation of all property belonging to a particular class, the requirement of the constitution referred to is complied with. The act of 1902 divides mines producing gold and other precious metals into two classes, producing and non-producing. The producing class are those the gross proceeds of which exceed five thousand dollars per annum. The act also provides that the person owning or operating a producing mine shall make out a statement and deliver it to the assessor, the purpose of which is to exhibit the gross and net proceeds per annum of such mine. From this statement the assessor is required to determine the gross and net proceeds of the mine to which it refers, and for the purposes of taxation shall value the mine at one-fourth of the gross proceeds, unless it appears that the net proceeds exceed one-fourth of the gross proceeds, in which event it shall be valued at the sum representing the net proceeds. Two propositions are advanced by counsel for plaintiffs in error, in support of their contention that the present revenue law relating to the assessment of mines is invalid: (1) That fixing the gross production in excess of five thousand dollars per annum as the basis upon which producing- and non-producing mines are classified is invidious and unreasonable; and (2) that the proviso in section 5625, Revised Statutes, limiting- the assessment of non-producers to a sum not exceeding the sum at which the lowest producing mine in the same locality is assessed per acre, is unconstitutional. — 467 — Generally speaking, mines producing the precious metals are only valuable for the ores they contain. Such value, intrinsically, is limited to the net value of such ores; that is, what is realized from their sale and reduction after the expense of extracting, reducing and shipping them to market is deducted. It is a well-known fact that in the great majority of mines large sums of money must be expended in opening up' the ore bodies and equipping them for successful operation. We must assume that the general assembly was familiar with these conditions, and understood as a fact that in most instances a mine the gross proceeds of which did not exceed five thousand dollars per annum, did not leave any net profits to tlie owner or operator. True, in some instances, as stated by counsel, a mine producing gross proceeds in a sum less than five thousand dollars per annum might leave the owner or operator a handsome profit, and that another property producing much more than five thousand dollars within the same period would not yield any profit, and that the latter under the law would be compelled to pay a tax which the former would escape. It is also true, that fixing- the maximum production at five thousand dollars per annum is arbitrary, in a limited sense. The same could have been said about the act of 1887, which fixed the production at one thousand dollars per annum. But any plan of assessment for taxation based on production must be arbitrary, whether great or small, but is not so, in the sense that for this reason it should be regarded as invalid, as the purpose of fixing the gross proceeds in excess of a specified sum as the criterion to g-ovrn assessors in determining the value of mining- properties is to fix their value on the basis of the profits realized in operating them, which, from their nature, represents their true and actual value. Mines are — 468 — valuable only by extracting their values. Each'ton of ore extracted reduces by that much the value of the propu erty from which it is taken. Sooner or later the ore bodies in a property being operated will be exhausted, and what then remains is generally worthless. It is also urged that if the legislature may fix the gross yield at five thousand dollars per annum, under which a mine is classed as non-producing, that it might so declare as to one yielding five hundred thousand dollars, or five million dollars, or that it might declare that a producing mine should not be assessed at a sum per acre in excess of the values per acre of the lowest non-' producing mine in the same locality. The constitution leaves the subject of assessing mines to the wisdom of the legislature by simply requiring that it shall prescribe regulations by general law which shall secure just valuations for the purposes of taxation. If rules so prescribed are not clearly calculated to produce gross inequality and injustice in the assessment of different parcels of property belonging to the same class, the courts will not interfere. No doubt instances of injustice and hardship will sometimes result under the statute now under consideration, but this is necessarily true of all statutes providing methods for the assessment and taxation of property. Exact uniformity and mathematical accuracy in values for these purposes are absolutely impossible. No statute can be framed which would bring about these results. As was said in the State Railroad Tax Cases, 91 U. S. 575, and quoted with approval in the Henderson case: “Perfect equality and perfect uniformity of taxation, as regards individuals or corporations, or the different classes of property subject to taxation, is a dream unrealized.” If it were necessary, in order to comply with the constitutional' requirement — 469 — regarding uniformity of taxation, that a statute to that end must prescribe such rules as would bring about absolute _ exactness, it would be impossible to frame one which would stand the constitutional test. We do not think the five thousand dollar limitation is invidious or unreasonable, or that upholding this limitation as valid will result in requiring this court to uphold some future act of the legislature which, by reason of its provisions with respect to valuations of mining property for the purposes of taxation, would clearly be unreasonable. . The purpose of fixing- the gross proceeds in excess of a specified sum was to classify mining properties as producing- and non-producing-, and that when the gross proceeds exceeded the sum specified, a fixed proportion thereof, or the actual net proceeds if they exceeded such proportion, would fix the value of such property for the purposes of taxation. Should our legislature, at some future time, place the gross output at such a large sum and still adhere to the present method of assessing mining properties, that such output would appear to be manifestly, unreasonable and unjust as a. guide from which to determine whether or not a property was producing or non-producing, a way would be found tO' correct it. The act is also attacked upon the ground that the provisions of section 5665 will produce inequalities, for the reason that a group of claims constituting one producing property would not be required to pay any greater tax than a producing- property consisting of. but one claim, or a fraction of a claim, producing a similar amount. We do not regard this as material. The valuation for the purpose of taxation of a producing property is based upon a percentage of such production, or the net proceeds if they exceed the percentage specified, and not upon area. It is also urged that inequality may result from assessing. — 470 — a group of claims as a producer in this way: If owned and operated in severalty, each might produce less than five thousand dollars, but in the aggregate the production would amount to more. The section refers to contiguous claims owned or operated by the same party through a common shaft or other opening, and not to contiguous claims owned in severalty and worked separately. Each class is assessed upon exactly the same básis—a part of the gross output; consequently, there is no inequality or discrimination. The act is also attacked upon the ground that section 5625 does not apply to mines of iron, coal, quarries and lands containing- other metals, minerals or earths not classed as precious, and, therefore, discriminates in favor of one class of mining properties as against others. There is a reason for the exemption of quarries and mines of coal and iron. Deposits of this character usually exist in such quantities, and are, generally, of such uniformity throughout an extended area, that it is not difficult to determine their value. With respect to ores carrying the precious metals, experience has established the converse. The veins are usually small, often ill-defined, irregular, uncertain in extent, and distributed through masses of barren rock, so that their values can not be ascertained with an}'- reasonable degree of certainty until mined. The section of the revenue act relating to the valuation of non-producing mines for the purpose of assessment is to the effect that they shall be assessed according-to the value thereof, and that the assessor, in fixing such value, shall take into consideration the location of such property, and its proximity to other mines, but shall not assess a non-producing property at a greater sum per acre than is assessed per acre against the lowest producing mine situated in the same locality. Numerous reasons — 471 — are urged by counsel for plaintiffs in error against the validity of this section, all of which may be determined by considering two questions: (1) Can the general assembly place non-producing mines in a class by themselves; and (2) if so, has its authority to provide for the assessment of this class of property been constitutionally exercised ? So long as classification is based upon the nature of property justifying- it, there is nothing to forbid legislative classification for the purposes of taxation, or to prevent the fixing- of valuation of different classes by different methods, provided that by the method prescribed for a particular class of property the burden of taxation is uniformly imposed upon that class, is just and equitable, and does not exempt it from bearing its fair proportion of the burden of taxation, as compared with other classes of property. Generally speaking-, non-producers are only valuable for the ores they contain. Practically, it would be impossible for an assessor to ascertain the extent of the ore bodies in such properties, or their value; consequently, it is patent that some reasonable method must be devised by which to fix 'the value of a non-producer for the purposes of taxation. In as much as producing mines may be placed in a separate class, and taxed on a special basis of valuation, we think that non-producing mines are of such a character that they can also be placed in a class by themselves for the purposes of prescribing- a method of assessment. The general assembly can not assess any class of property for the purposes of taxation. This is the function of the respective county assessors, but the legislature, by general laws, may prescribe such regulations for the guidance of these officials 'as shall secure a just valuation for taxation. Taxation of Mining Claims, 9 Colo. 635. — 472 — The legislature, in providing for the assessment of non-producing claims, has not violated this rule. ' It has not assessed' that class of property by placing a'value thereon, but has merely prescribed regulations for the assessor to follow in order to secure a just valuation for the purpose of' taxing it. He is required to assess it according to _ value. In order to ascertain that value, he shall take into consideration its location and proximity to other mines, and any matters which 'may aid him in arriving at a fair and equitable valuation. There is certainly nothing in any of these provisions which will prevent the assessor, in valuing non-producers, from discharging his functions. On the contrary, they point out how the fair and equitable valuation which he is to fix shall be ascertained. Nor does the provision,' to the effect that in valuing- such property the assessor shall not assess a non-producing property at a greater rate per acre than is assessed per acre against the lowest producing mine in the same locality, place a limitation upon the functions of the assessor which is invalid. What the total amount assessed against a producing property amounts to per acre can readily be determined. By section 5619, R. S., the owner of a producing- property is required to return the number of acres in the claim or claims constituting the property classed as producing. By section 5665 the assessor is required to assess in one body the several contiguous claims constituting a producing property which are operated through a common shaft, tunnel' or other opening; so that there can never be any difficulty from the data which the owner is required to furnish and the manner assessments shall be made in the assessor ascertaining- what the total assessed valuation fixed for a single or several contiguous properties amounts to per acre. As previous!}’' stated, a mining — 473 — property is only valuable for the pres it contains. What this may be in a non-producer is purely speculative.. A mine which is producing ores .is. intrinsically of more value than one which is non-producing; so that the rules prescribed for an assessor to follow in fixing the valuation of.a non-producer simply require that he shall ascertain„the value for the purposes of taxation by a method which will be equitable and just, and which will not result, in placing upon it a greater valuation than a producing, property in the same locality which is manifestly of a greater intrinsic value. By the provision under consideration -the assessor is required, in placing a valuation on non-producing properties,. to, in effect, follow the same rule, so far as practicable, prescribed for producing properties. The real basis of this rule is net proceeds, which, in fact, is all any mining property is actually worth, a value, however, which can not be determined with any degree of accuracy until the ore is extracted and disposed of. By requiring the assessor, in fixing the value of a non-producer, at a sum not .exceeding the value placed upon the lowest producer in the same locality, a method for valuation of a non-producer has been prescribed which approximates net proceeds of producers in the same locality. This valuation, though speculative in a measure, as to a non-producer, is as nearly certain, just and equitable as the nature of that class of property will permit. The rule prescribed for fixing this valuation prevents the assessor from placing a higher value upon a non-producer than the valuation of the lowest producer in the same locality, but this does not interfere with his official functions. It merely requires him to follow a rule in fixing valuation which, from the nature of the property to which it refers, will result in a just valuation as compared with other mining — 474 — property in the same locality of greater intrinsic value. The Pilgrim C. M. Co. v. Teller Co., 32 Colo. 334. Oh the authority of that case, we do not think that the proviso in section 5625 adds anything to- the act, or prescribes a rule different from that which the assessor would be required to follow if the proviso had not been added, for the reason that without it, the assessor could not legally value a non-producer at a greater sum than producers. In the Pilgrim case, it was said, in speaking of the act of 1887, which did not contain the proviso found in section 5625 : “It is not to be supposed that it contemplated that the methods it furnished in the general revenue.law, and which this court has said must be employed to ascertain the valuation of a non-producing mine would, or could, result in an assessment larger in amount than that made in accordance with the specific instructions it prescribed for securing the valuation of a more valuable producing mine similarly situated. In other words, when the general assembly, by the specific methods it provided therefor, limited the valuation which the assessor can place upon a more valuable producing mine, the assessing officer may not, by employing the methods adapted to other real estate, put a greater valuati on upon a less valuable non-producing mine alongside of, or similarly situated to, the former.” The trial judge held, in effect, that “locality,” as employed in section 5625, was equivalent to “neighborhood,” “vicinity” or “proximity,” and not necessarily adjacent to or adjoining; that where mines, called producing mines, and mining claims called non-producing, are situated on the same hill or in the same gulch, or in the same general group of mines or mining claims, or in the same geological formation, such mines or mining claims — 475 — may be said to be in the same locality. Counsel for plaintiffs in error say that they are not prepared to challenge the accuracy of this definition. Counsel for defendants in error assert that it is not altogether accurate; but admit that, in the circumstances of this case, they could not assign any cross-error upon the definition given by the trial judge. In such circumstances, we do not think we. are called upon to determine whether or not the definition is correct. The judgment of the district court is affirmed. Judgment affirmed. Decision en banc. Chiee Justice Campbeee and Mr. Justice Mus-SER not participating.