State v. Eastabrook , 3 Nev. 173 ( 1867 )

Opinion by

Beatty, C. J., Lewis, J.,

concurring.

This was an action brought in the name of the State against the defendant for taxes alleged to be due the State and County of Ormsby for the year 1866. The property upon which the tax was levied consisted of certain choses in action or debts due to defendant.

The defense is two-fold: First, that defendant removed from the State of Nevada on the sixth day of April, 1866 ; that the chose in action followed the person of defendant, and therefore was not taxable in this State after that date; that the assessment of the property was made after the sixth of April, and was therefore void, and conferred no right of recovery on the plaintiff.

The second ground assumed in defense was, that the ninety-ninth section of the Revenue Act of 1864-5, as amended in 1866, discriminates in favor of the products of the mines, levying a smaller per centage of taxes on them than on other property; that, for this reason, the tax on other property was in contravention of that Article of the Constitution which requires all taxation to be equal and uniform.

We will examine these points in the order in which we have stated them. The law levying the taxes for the year 1866, was approved February 24th, of that year. The first sentence of the first section of that Act is in these words:

“ An annual ad valorem tax of ninety-five cents upon each one hundred dollars’ value of taxable property is hereby levied, and directed to be collected and paid for State purposes, upon the assessed value of all taxable property in this State, not by this Act exempt from taxation.”

Another sentence reads as follows:

“ And upon the same property, the Board of County Commissioners, in each county, is hereby authorized and empowered to levy and direct to be collected and paid annually, an ad valorem tax for county purposes, a sum not exceeding one hundred and fifty cents on each one hundred dollars’ value of taxable property in the county.”

Section 2 of the Revenue Act requires the County Commissioners to make their levy for county purposes, prior to the first Monday of April in each year.

Section 3 declares that a lien shall attach on the first Monday of April in each year, upon all taxable property then in the State. These clauses seem clearly to declare that all property in the State when the law ivas passed, and which should remain there up to the first Monday of April, should be liable to taxation. There can be no question that the Legislature has a right to tax property belonging to its own citizens, and remaining a portion of the year within its jurisdiction. The citizen could not avoid the payment of the tax by removing the property after the tax was levied. Respondent, however, claims that this property is to be held exempt, not because it was removed from the State before any levy was made, but before there was any assessment thereof. The Revenue Act requires the County Assessors to make their assessments between the second Monday of May and the second'Monday of September, in each year. But this, it appears to us, is wholly immaterial. The tax was levied prior to the sixth of April, when defendant left the State. From the moment of the levy there was a duty or obligation imposed on the owner of the property to pay a certain per centage of its value to the State for taxes. The removal of the property from the State before the value thereof was ascertained by the Assessor, might render it more difficult in some cases to ascertain the real value of the property, but could not release the owner from his legal liability to pay the tax when the amount thereof was once ascertained. We think that the property, having remained in the State after the first Monday in April, was clearly liable for both State and county taxes.

The tenth Article of the Constitution reads as follows:

“ The Legislature shall provide by law for a uniform and equal rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, real, personal and possessory, excepting mines and mining claims, the proceeds of which alone shall be taxed, and also excepting such property as may be exempted by law for municipal, educational, literary, scientific, religious or charitable purposes.”

The first phrase to which our attention is called is this: “ A uniform and equal rate of assessment and taxation.” We have no hesitation in saying that the Constitutional Convention, in using the language last quoted, meant to provide for at least one thing in regard to taxation: that is, that all ad valorem taxes should be of a uniform rate or per centage. That one species of taxable property should not pay a higher rate of taxes than other kinds of property. If the language we have quoted did not express this idea, then it was perfectly meaningless. The language used may mean much more than this, but it cannot mean less. The Constitution clearly intends to provide against that species of injustice which frequently prevails in communities where there is one overshadowing interest: the exemption of the property connected with that interest from its legitimate share of the public burdens.

It is a part of the history of the State known to every intelligent man within its borders, and frequently alluded to in the Constitutional debates, that at the time we were about to frame our State Constitution, those most largely interested in mines insisted they should be exempted from all taxation; that the Constitution should provide for their exemption so as to set this question at rest for at least a series of years. This exemption was claimed for several reasons: one, that the mines gave life and energy to all other kinds of business; that the prosperity of all other business depended on the success of the mines. Another, that mining claims, especially before they were so far developed as to be productive, were of too uncertain a value to admit of a fair valuation for taxation.

On the other hand, the population of the State settled in the agricultural portions thereof asserted that the mines constituted the great portion of the wealth of the State, and that it was highly unjust to relieve them and throw the whole burden of taxes on those counties which were poorest and least able to pay. The result seems to have been a compromise of the extreme views of each party, which is very clearly expressed in the Constitution, and embraces two main propositions: First, that all property assessed for an ad valorem tax should be liable to pay the same per centage; second, that unproductive mines should be entirely free from taxation, whilst those which were productive should pay the regular ad valorem tax on the products, instead of the same tax on the body of the mine itself. There can be no doubt but it was the intention that the entire product should be taxed, in lieu of the body of the mine. This property is different from all other property in the State. Whilst the products of farms remain in the State until consumed, being generally subject to at least one taxation per annum, the products of mines are removed from the State at the end of each week; so that it is seldom that more than the fiftieth part of the products of any of the principal mines is in the State at one time. Taking these views to be correct, (and we think there can be no reasonable doubt that they are so) let us look at the sections of the Revenue Law complained of, and see how far they conform to or are in conflict with these views.

The first section of the Revenue Act levies an annual ad valorem tax for State purposes of $1.25, and authorizes a County tax of $1.50 on all taxable property in the State. This is clearly in accordance with that clause of the Constitution which requires “ a uniform and equal rate” of taxation. This section seems in every respect unexceptionable. Section 99 imposes on the products of the mines an annual ad valorem tax of one per cent, for State and County, say one-half per cent, for State purposes, and an equal amount for County purposes. This clause can receive but one of two constructions: it was either intended to fix the entire rate of taxation for the products of mines at $1 on the hundred for State and County purposes, in lieu of the $2.75 fixed for other property; or else, as is contended by appellants, it is really an additional tax on mining products of one per cent, over and above the ordinary tax imposed on other property. In either event, the clause is equally void. The Legislature could neither make the tax greater nor less on the products of mines than on other property. Then follows, in the same section, a clause directing the manner of assessing the products of the mines. That clause is in these words: “ All of said ores, quartz, or minerals shall be assessed as follows: From the gross return or assessed value per ton of all ores, quartz, or min erais from which gold and silver, or either, are extracted in this State, there shall be deducted the sum of twenty dollars per ton.” This clause merely points out the method of finding what is the true value of the ores, which are the primary products of all mines.

We have no doubt the Legislature may direct the method of assessing property, provided the object is to attain a just valuation. This Court could not declare any law directing the mode of assessment void unless it manifestly violated those principles of justice which are required by the tenth Article of the Constitution. We see nothing objectionable in this clause. The closing sentence of Section 99 directs a tax to be levied on three-fourths of the value, previously ascertained, of the proceeds of the mine. This is clearly unconstitutional. The value once being ascertained, the whole value is taxable at the same rate as all other property.

Section 117 of the Revenue Act, which provides for distributing the one per cent, tax directed to be levied by Section 99, falls, of course, with the opening clause of the last mentioned section. We see no constitutional objection to any other portion of the law. •

The question then remains, whether the unconstitutionality of the opening and closing clauses of Section 99, and of the whole of Section 117, destroys the validity of the whole Act; or can the other portions of the Act stand, rejecting these portions which are in contravention of the Constitution ?

No principle can be better settled than this : that if a law passed by the Legislature be constitutional as to part of its provisions and unconstitutional as to others, the unobjectionable portion may stand, if by rejecting that which is unconstitutional, the whole object and effect of the law is not destroyed. In this case we may reject all that part of the Act which is in conflict with the Constitution, and have a perfect and complete revenue law. If by rejecting that part of Section 99 which we hold to be in violation of the fundamental law of the State, the products of the mines were left free from taxation, this would vitiate the entire law; for it would have the effect of compelling one portion of the citizens to pay more than their due share of the State burdens.

The first section of the Act levies a tax on all taxable property in the State. That includes the proceeds of mines as well as other taxable property. Other sections direct the method of assessing this kind of property; and if the assessors and tax collectors had only done their duty, disregarding these unconstitutional provisions entirely, the whole tax could have been collected.

That the mines — which constitute the greater part of the wealth of the State — have for the last two years almost entirely escaped taxation, is true. That the failure to collect the due proportion of taxes from them has greatly embarrassed the State, and thrown a heavy burden on that portion of our population least able to bear it, is equally true. But whilst the mines have escaped their share of the public burdens, through the fault and neglect of the assessors and collectors, it would certainly not be promoting the ends of justice to excuse one-third or one-fourth of all the other tax payers in the State from the payment of their taxes, thus further increasing the burdens of those who have paid their taxes without suit. Such a ruling would neither be in accordance with law, with justice, or public convenience. Tax payers who did not wish to be overburdened by the payment of more than their share of the State expenses should have taken steps to compel the assessors and collectors to do their duty. There can be no doubt the Courts would have afforded relief. Having failed to do this, no tax payer can be allowed to set up the illegal conduct of these officers as a defense to an action brought against him for his taxes.

In the case of Exchange Bank of Columbus v. Hines, 3 Ohio State Reports, 1, the same constitutional questions arise as in this case, and the Court arrives at the same conclusions as ourselves. The principal opinion (written by Chief Justice Bartley) is a very clear exposition of the law bearing on the constitutional branch of this case. It is so ably and clearly written that we have thought it hardly worth while to go into a more lengthy discussion of the points involved. We refer to that opinion, as expressing our views more clearly than we ourselves could express them.

The judgment of the Court below is reversed, a new trial granted, and the cause remanded for further proceedings.

Having been counsel, Johnson, J., did not participate in this decision.