Mammoth City v. Snow , 69 Utah 204 ( 1926 )

We dissent from the opinion of Mr. Justice STRAUP, and, assuming that it expresses the views of the majority, we shall henceforth refer to it as the opinion of the court.

In the main we agree with the statement as to the issues presented by the pleadings, but we disagree fundamentally with the conclusions drawn therefrom. The opinion quotes, as far as material here, the various sections of the statutes relating to the assessment of mines. In addition to these statutes we here quote the amendment to the state Constitution (Article 13 § 4), relating to the same subject:

"All metalliferous mines or mining claims, both placer and rock in place shall be assessed at $5.00 per acre, and in addition thereto at a value based on some multiple or sub-multiple of the net annual proceeds thereof. All other mines or mining claims and other valuable mineral deposits, including lands containing coal or hydrocarbons, shall be assessed at their full value. All machinery used in mining and all property or surface improvements upon or appurtenant to mines or mining claims, and the value of any surface use made of mining claims, or mining property for other than mining purposes, shall be assessed at full value. The state board of equalization shall assess and tax all property herein enumerated, provided that the assessment of $5.00 per acre and the assessment of the value of any use other than for mining purposes shall be made as provided by law."

We also quote the following from the state Constitution, art. 1, § 26:

"The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise."

Now, as to the issues involved: It is alleged in the application of plaintiff that certain mines, which for convenience we will denominate "the Grand Central mine" are situated in Mammoth City, Juab county; that they are owned and operated by the Chief Consolidated Mining Company and the Grand Central Mining Company; and that said mines were not assessed by the defendant board for taxation purposes in 1923 and 1924; that during said years said mining companies extracted large quantities of ore from said mines, the net proceeds of which were of the approximate value of $1,500,000. It is then alleged that in 1924, plaintiff levied a tax of 15 mills on the $1 of the assessed valuation of all taxable property within the city, and because of the failure of the defendant board to assess said mines plaintiff was deprived of the tax, which, on its information and belief, plaintiff alleges amounted to the sum of $22,500.

Whether or not the Grand Central mine was assessed by the defendant board during the years 1923 and 1924, is the vital issue in the case. All other issues are immaterial, except as they bear upon the vital issue. After denying the ownership of said mines by the Grand Central Mining Company and alleging that the Chief Consolidated Mining Company purchased the same in 1922, defendants then allege that after said purchase the Chief Consolidated Mining Company consolidated said mines with other mines belonging to it, and thereafter operated them all as one mine. Defendants admit that large quantities of ore were extracted from said mines so consolidated during the years in question, but allege that the net proceeds of the ore extracted from that portion within the limits of Mammoth City was less in value than the sum of $135,000. After alleging the manner of operating the mines, as above stated, it is then alleged that the defendant board did assess the mining property in question for the years 1923 and 1924.

It thus appears that the answer of defendants amounts to only a qualified denial that no assessment was made, and, as qualified, in our opinion, as matter of law it amounts to no denial at all. The whole question depends upon what constitutes a mine. If a taxpayer has a right to take any number of separate and distinct mines, subject to taxation under the Constitution and laws of the state, and group them together and call them one mine for purposes of taxation, it is easy to see how the taxing units in which the mines are situated may, at the whim or caprice of the mine owner, be annually deprived of the revenue to which they are entitled. If by so grouping their mines the proceeds from the productive mines can be applied to the development of those which are unproductive, or partially so, it seems to us that one of the most vital purposes of the statute may thereby be defeated. The first important question therefore is, Was the Grand Central mine, which is admitted to be in Mammoth City, in 1923 and 1924, a mine within the contemplation of the statute quoted in the opinion? If it was a separate and distinct mine and subject to taxation in 1922, when it was purchased by the Chief Consolidated Mining Company, our contention is that it did not lose its character as such by being grouped with other mines for the mere convenience of the owner or for the purpose of escaping taxation. The answer admits the existence of the Grand Central as a separate mining claim at the time it was purchased and alleges its consolidation with other mining claims. The most significant admission, however, is that made by the Attorney General in his brief filed in the case. He represents the defendant board, and the board is therefore bound by his admissions. We quote from the first page of his brief the following language:

"Prior to November 10, 1922, Grand Central Mining Company owned the mining claims particularly described in paragraph 5 of the affidavit of plaintiff. These claims are situated within the limits of Mammoth City. Within these mining claims the Grand Central Company had developed a mine, and as the owner and operator of this mine it had made the annual return to the state board of equalization for assessment purposes. The state board of equalization made the assessment and returned the same to the board of county commissioners of Juab county, and the assessment was by that body alloted to the Mammoth City taxing unit."

It thus appears that the Grand Central mine, located in Mammoth City, prior to 1923 was a recognized mine, taxed as such, and the revenue derived therefrom, for city purposes, was paid to Mammoth City. The opinion of the court expressly declines to define a mine for taxing purposes, yet, as we understand the logic of the opinion, it leads to the inevitable conclusion that distinct and separate mines, taxable, as such, may be consolidated and operated as one mine and thereby become taxable only as such. However, in our opinion, in the instant case it is not of vital importance, for it must be conceded from every rational point of view that the Grand Central mine is a mine and has been so considered and treated by the taxing authorities of the state. One thing is manifest — if the Grand Central is not a distinct mine for taxing purposes, then it is absolutely necessary in the case at bar to determine what a mine is in order to justly and intelligently decide the issues involved. The opinion seems to proceed on the theory that the grouping and consolidating of several distinct mines by the owner for working purposes converts the several mines into one for taxation purposes, for the opinion stresses the point that plaintiff made no denial thereof, and therefore treats it as an admitted fact. Our contention is that such grouping and consolidation of distinct mines do not, as matter of law, convert them into one mine for taxing purposes, and therefore it was not incumbent upon plaintiff to deny the fact. If plaintiff in its application for the writ had expressly alleged that the mining company had grouped and consolidated its mines and was working them as one mine and was assuming that it was one mine for taxing purposes, would the application have been demurrable on that ground? Certainly not, unless such grouping and working constituted a single mine in contemplation of the statutes quoted. It is a question of law pure and simple under the issues of this case and not an issuable fact. If in the opinion of the court it is an issuable fact, then its position must be, as before stated, that the grouping and consolidating of several mines and working them as one constitutes only one mine for taxing purposes. If that is the opinion of our associates they ought to have so stated in their opinion instead of declining to state what constitutes a mine.

Assuming, as we do, that the Grand Central mine situated in Mammoth City is a mine for taxing purposes in contemplation of the statutes quoted, the question is, Was the Grand Central mine assessed for taxation in 1923 and 1924? The statute, section 5929, quoted in the opinion, provides that every person engaged in mining, etc., must each year make out a statement of the gross yield of the metals or minerals from each mine worked or owned by such person during the year next preceding the 1st day of January, and its value, which statement shall show the net proceeds thereof. We have stated the substance of the section only in so far as it is material here. The sole purpose of this section is to advise the board of equalization so that it may make a proper assessment of each mine. Section 5932 then provides, in substance, that the board of equalization, prior to the first Monday in May of each year, must assess the mines and mining claims, etc., and before the third Monday in June apportion the same to the several counties in which the mines are situated. The board must prepare a book called the "Assessment Book of Mines," in which must be entered the assessment of all mines subject to assessment, and in which must be specified in separate columns and under appropriate heads: (1) Owner of mine; (2) name and description and location of mine; (3) county in which it is situated; (4) net proceeds in dollars if a metalliferous mine; (5) value of the mine, etc.

As we understand the statutes, such record constitutes an assessment of a mine in this state. The application filed by plaintiff in this case alleged that there had been no assessment of the Grand Central mine for the years 1923 and 1924. This court deemed the application sufficient to invoke the power and jurisdiction of the court, and it issued an alternative writ thereon directed to the defendant board, reciting the allegations of the application, alleging that no assessment of said mine had been made, and required the board to forthwith make the assessment as required by law or appear on a certain date and show cause why it had not done so. The board made answer and attached thereto its so-called record of assessment of said mine. Nowhere in the record does the name of the Grand Central mine appear. There is no description thereof, nor is the location given. The net proceeds of the Grand Central mine situated in Mammoth City is not stated, nor is the value of the mine given. Every possible requisite of a valid assessment under the statute, except the name of the owner and the county, is omitted, and the consequence is that Mammoth City was wholly deprived of the revenue to which it was justly entitled. Had the assessment been made as provided by law, even in substance, such injustice would not have occurred. If the Grand Central mine had even been named, to say nothing about the description or location thereof, as the statute requires, the injustice complained of would not have happened, because the mine by its name was evidently so well known that the board of commissioners of Juab county could readily have apportioned the tax. The only pretended assessment by the board was to name the owner and the county and state the net proceeds of its mining properties in Juab county, with the values of said properties. If the county collector of Juab county had undertaken to enforce payment of the taxes due Mammoth City for the years in question, upon what property could he have levied? Upon what property did Mammoth City have a lien for taxes? This is one of the tests for a proper assessment of land, and the Grand Central mine is land.

Before referring to authorities as to what constitutes a valid assessment, we will make one or two observations concerning some matters referred to in the opinion of the court. It is said that the answer of defendants alleged that the taxes on the net proceeds for the years in question have been paid and that that allegation has not been denied. This is somewhat analogous to the question we have already reviewed relating to the grouping of the mines and operating them as one mine. It is a question of law and not an issuable fact. If the Grand Central mine has not been assessed at all it is no defense, as matter of law, that the taxes have been paid, especially if they were not paid to Mammoth City. If the mine was not assessed at all, as we contend, certainly the payment of taxes thereon to some other taxing unit not entitled thereto is no defense as against Mammoth City, either in law or in equity. It is not claimed in the answer or in the opinion of the court that Mammoth City was paid any taxes whatever for the years in question, and it is alleged in the application and admitted in defendants' brief that the Mammoth City taxes were not paid. Furthermore in this connection, even if it be assumed that the mining company, in good faith believing it had been assessed, paid the taxes on the Grand Central mine to some other taxing unit, still the bald fact remains that the mining company has not paid all the taxes it should have paid for the years in question. If the mining company be credited with taxes paid to some other taxing unit which ought to have been paid to Mammoth City, there is nevertheless a sum exceeding $3,000 due to Mammoth City, which the mining company has not paid at all, and which has entirely escaped taxation as far as Mammoth City is concerned, because of the fact that there was no assessment of the Grand Central mine.

Viewing the case from every possible angle, it cannot be contended that Mammoth City has no just cause for complaint.

Reverting now to the question, Was the Grand Central mine assessed as provided by law? We have shown that not a single requirement of the statute, except the name of the owner and the county in which the mine is located, was observed by the board in its pretended assessment.

In Cooley on Taxation (3d Ed.) vol. 1, p. 598, it is said:

"The assessment being so important, the statutory provisions respecting its preparation and contents ought to be observed with particularity."

In Brown on Assessment and Taxation, at page 68, it is said:

"An accurate description of the land assessed is essential to the validity of the assessment and without certainty in that respect no foundation is offered for future action."

The text refers to In re N.Y.C. H.R. Co., 90 N.Y. 342. In that case there was some attempt to describe the land, but it was held that the assessment was invalid.

In 26 R.C.L. at page 314, the rule is thus stated:

"A sufficient description of the property intended to be assessed is inherently essential to a valid tax on real estate, and if the property is not described in the assessment list with sufficient accuracy and particularity to render it capable of ready identification the tax thereon is void."

Again, it is said in the same section:

"If the statute imposes special requirements in regard to description, these are mandatory and must be complied with, and a description will not be sufficient to sustain a tax even if it is sufficient readily to identify the land and would be adequate in a deed if it is not in compliance with the statute."

We are not contending for any such stringent rule in the case at bar. It undoubtedly applies in cases where parties are claiming under tax sales. What we do contend, however, is that where property has not been assessed at all, or assessed so inadequately as to permit of property escaping taxation, then the public and every taxpayer of the taxing unit is interested just as much as is the taxpayer who is complaining of a void assessment. In such cases the law requiring a proper assessment is mandatory, and a writ of mandate will lie to enforce it.

In Cooley on Taxation, supra, at pages 1357, 1358, in speaking of the writ of mandate, the author says:

"It will lie to compel an assessor to assess lots separately as required by the statute; to compel the assessment as town lots and not as farming lands of land which has been laid out into lots and to correct clerical errors in the assessment rolls while yet they are in the assessor's hands. If the assessors omit fromthe roll property which is taxable, they may be compelled toinsert it on the roll on the application of the proper lawofficer of the state." (Italics ours.)

The cases cited in the note support the text. Even a taxpayer may apply for the writ where taxable property is omitted from the roll. See, also, People v. Purviance, 12 Ill. App. 216;State v. Bartholomew, 103 Conn. 607, 132 A. 30, and State exrel. Wayne County Court v. Herrald, Commissioner, 36 W. Va. 721,15 S.E. 974. The last case cited and cases referred to in the opinion are especially illuminating on the question as to who may apply for the writ and when it may be applied for.

In Dillon, Municipal Corporations (5th Ed.) p. 2657, the correct rule is stated, and was quoted in the original opinion in this case, as follows:

"If the inferior tribunal, corporate body, or public agent or officer has a discretion, and acts and exercises it, this discretion cannot be controlled by mandamus. But if the inferior tribunal, body, officers, or agents refuse to act in cases where the law requires them to act, and the party has no other legal remedy, and where, in justice there ought to be one, a mandamus will lie to set them in motion, to compel action; and, in proper cases, the court will settle the legal principles which should govern, but without controlling the discretion of the subordinate jurisdiction, body, or officer."

The taxpayer in such cases is certainly injured in that he is compelled to bear an unequal burden.

Some contention has been made, if not in the opinion of the court at least in our discussion of the issues, that plaintiff in this case has not proved that the Grand Central mine was not assessed. That contention presents the question as to what character of evidence is admissible to prove whether or not there has been an assessment of land. Our position is that the assessment roll, or the record of assessment, is the only evidence admissible unless the record has been lost or destroyed.

Cooley on Taxation (3rd Ed.) vol. 1, p. 601, in one brief sentence states the rule:

"An assessment of land cannot rest in parol, for a definite record evidencing official action is essential."

For brevity we quote the following from 45 Century Digest, Col. 834 § 514:

"The record of taxes, so long as it exists, is the best and only evidence of taxation. Pittsfield v. Barnstead,38 N.H. 115; Farrar v. Fessenden, 39 N.H. 268.

"The proper way to show whether land was taxed to a party or not is by the records. Forest v. Jackson, 56 N.H. 357.

"Where the office of the clerk of the county court had been burnt, and the records destroyed, and it was proposed to establish the assessment of a particular lot for a certain year, the sheriff was offered to prove that he had seen either the original tax list in the clerk's office, or in his predecessor's hands an authenticated copy of the tax list, on which the sheriff collects the taxes and to show its contents. Held, that as it did not appear that the list was either lost or destroyed his testimony as to its contents was inadmissible.

"A deed from the commissioners for land sold for the nonpayment of taxes is inadmissible to prove that the taxes had been assessed on the land and paid by certain parties, since such facts are capable of better proof by the duplicates and the treasurer's books. Simon's Lessee v. Brown, 3 Yeates (Pa.) 186, 2 Am. Dec. 368.

"A book, alleged to contain an assessment on unseated lands, found in an office occupied by the commissioners and treasurer, which does not express that it is the unseated land book of the county, nor that it is a transcript of the unseated lands furnished by the commissioners to the treasurer, and which is without evidence as to its identity, is not evidence of an assessment. McReynolds v. Longenberger, 57 Pa. 13.

"The only proper proof of assessment of property for taxation is the production of the assessment, or duplicates from the commissioner's office. Stark v. Shupp, 112 Pa. 395, 3 A. 864.

"Assessment rolls are themselves the best evidence of their contents, and they cannot be proven by the evidence of a city official. City of Seattle v. Parker, 13 Wash. 450,43 P. 369."

We have verified the quotations by an examination of the cases.

This rule, as we read the authorities, is not disputed by any well-considered case; hence, we do not understand what is meant by the contention that plaintiff failed to prove the Grand Central mine was not assessed. When the board of equalization, in response to the writ, brought into court the only evidence admissible to prove whether or not the mine had been assessed and thereby failed to show that it had been assessed, it seems to us the plaintiff's case was fully proven and in the only way it could be proven, especially as no claim was made that any of the records were lost or destroyed. Conceding, as contended, that the burden was on the plaintiff to prove that the mine had not been assessed, it fully discharged that burden by the record made and produced by the board. What other evidence that would have been admissible could plaintiff have offered to prove that the Grand Central mine had not been assessed? The rules of evidence relating to documentary evidence applies to this case. The writing itself is the best evidence, and no other is admissible unless it appears that the writing has been lost or destroyed. If it be contended that it does not appear that all the records of the assessment of mines for the years in question were produced, the answer is that the Attorney General, in open court in response to a question by the Chief Justice, stated that all the records were before the court. This was verified by the secretary of the board, who happened to be present in court.

While we do not agree with the contentions made by the Attorney General and his associates in the case in their discussion of the issues presented, we do, however, commend them for their frank admissions on two or more important questions which tend to clarify the record. In addition to the admission already referred to and quoted wherein they admit that the Grand Central mine when purchased by the Chief Consolidated Mining Company was a mine and had been assessed as such and the taxes thereon paid to Mammoth City, they also admit in the same brief that Mammoth City during the years in question did not receive its taxes on the net proceeds of the Grand Central mine. We contend, as before stated, that the sole reason why Mammoth City received no taxes on the net proceeds of the mine is because the net proceeds of the mine were not assessed. Counsel for defendants, and also the court in its opinion, refer to one record before the court in which it appears that the name of the Grand Central mine is mentioned. The caption of the record referred to reads as follows: "Record of assessment for the year 1924 upon the property of the Chief Consolidated Mining Company, Grand Central mine, Mammoth," etc. This record is relied on as evidence of the fact that the Grand Central mine was not overlooked in the assessment. To our minds this record but emphasizes the fact that the net proceeds of the mine were not assessed, for the body of the instrument when examined merely shows an assessment of the personal property of the mine, such as machinery, tools, and various kinds of mining equipment. These were properly assessed. The mine was named, located, and described, but the net proceeds of the mine were not assessed. What may we infer from this record? (1) That the Grand Central mine was by the record recognized as a mine; (2) that when the board of county commissioners of Juab county saw the record, which it must have done, and saw that the personal property of the Grand Central mine had been assessed, but not the net proceeds, it could well have concluded that the mine had produced no net proceeds for the year in question, otherwise, they too would have been assessed. In that respect the record was worse than no record at all, for if the mine was assessed, as contended by defendants, the record was absolutely misleading and calculated to produce the very wrong of which plaintiff complains.

Much is said in the brief of counsel for defendants and in the opinion of the court as to the fault of the board of commissioners of Juab county in failing to apportion the taxes among the taxing units of the county. The blame is laid at the door of the commissioners instead of the state board of equalization, whose failure to make the assessment as required by the statutes is the foundation of the whole trouble. The statute requires the state board of equalization to so assess the property that nothing is left for the county commissioners but to apportion the taxes among the taxing units of the county. It requires the state board to not only name the owner of the mine and a description thereof together with the county in which it is situated, but in addition thereto it requires said board to name the location of the property. The word "location" does not refer to the county, because the name of the county is also required. The principal if not the only reason for requiring the location of the mine to be given as well as the name of the county is to determine the local units in the county among which the taxes are to be apportioned. The state board is expressly given by statute full power to ascertain every fact requisite to make an assessment. If the mining company will not furnish the information the board can obtain it from any other available source. The board of county commissioners is not so expressly empowered, nor is there any reason why it should be if the state board of equalization would perform its duty as the law requires. In our opinion the word "location" used in the statute refers to the taxing units within the county and cannot logically refer to anything else. Why, then, criticize the board of county commissioners, who are not parties to this proceeding, instead of putting the blame where it actually belongs?

It is said in substance in the opinion of the court that to require an assessment now to be made segregating the proceeds of the mine would be of no avail to plaintiff, because "the tax thereon admittedly has been paid." We know of no such admission as far as taxes due Mammoth City are concerned. On the contrary, as we have shown, it is admitted in defendants' brief that the taxes due Mammoth City have not been paid. The error into which the majority of the court has fallen is grounded upon the fallacious assumption that plaintiff is asking for judgment on the pleadings. The defendants themselves made no such contention, nor did their counsel during the argument. Plaintiff is asking for judgment on the records produced and solemn admissions made by defendants in open court and in briefs filed in the case. Again, it is said in the court's opinion, "Surely the company may not then be penalized and subjected to double taxation." Then follows language which goes a long way towards deciding in advance that Mammoth City would not have a cause of action of any kind against the county or any other taxing district in the county which had received taxes to which Mammoth City may be entitled. The majority may be right upon that question. We neither admit or deny. But is it proper to decide that question now? If Mammoth City can get no relief in this form of action is it right to decide in advance that it can get no relief in any form of action? As that question is not before the court, we think it should be reserved. Neither is the question of double taxation before the court. Double taxation is repugnant to the feelings and sensibilities of every just-minded man, whether he is the victim of it or not. But Mammoth City has received no taxes whatever on the net proceeds of the mine. It is not asking for double taxation. If the mine is assessed as the law provides Mammoth City can at least get partial relief without penalizing the mining company or subjecting it to double taxation. If the question of double taxation arises by reason of a proper assessment, that question can be adjusted according to equity in some other proceeding. The case of Shackelford v. McGlashan, 27 N.M. 454, 202 P. 690, 23 A.L.R. 75, cited and relied on in the prevailing opinion, illustrates our views of the law in this connection. In that case the property was misdescribed in the assessment, but the owner paid the tax believing he was paying it on the land assessed. A reassessment was made in which the land was properly described. Upon that assessment the tax was not paid and the land was sold for the nonpayment thereof. In an equitable proceeding instituted by the owner of the land the tax deed was canceled.

While this is not a case of double taxation the same equitable principle is involved. The distinction between that case and the case at bar is manifestly clear. In that case the owner of the land paid all the taxes levied on the property. In this case the tax levied by Mammoth City has not been paid, and to that extent the mining company has escaped taxation.

We are not disposed to indulge in drastic criticism or condemnation of the owners of the Grand Central mine. That company is not before the court as a party, but strong pleas have been made in its behalf and apprehension of double taxation is strongly stressed, both in defendants' brief and in the prevailing opinion. As to this it is only necessary to state that the hands of the mining company are not entirely clean. It has not paid Mammoth City any taxes on the net proceeds of its mine in that city either for the year 1923 or 1924. It knew that taxes had been levied by Mammoth City on all the taxable property within the city in 1924; it knows that the taxes have not been paid to Mammoth City, and that Mammoth City has been wholly deprived thereof; it knows that at least a portion of the taxes levied on its property in Mammoth City has not been paid to Mammoth City or to any taxing district in Juab county or anywhere else in the state. It therefore knows that a part of its property in Mammoth City has entirely escaped taxation. So that the plea of double taxation, by whomsoever made, has no place in this proceeding.

It has also been stated that the mining company made its return to the state board of equalization on blank forms furnished by the board and that therefore it is not to blame. In answer to this it may be said that the blanks furnished by the board were ample for the purpose of substantially complying with the statute, if the proper return had been made by the company. This was demonstrated in the assessment made on the personal property connected with the Grand Central mine in 1924. In that assessment the name of the mine was stated together with name of the owner. The location was given as Mammoth City, and the property to be assessed was minutely described and its value stated. Upon that return the state board of equalization could make and did make an assessment in strict compliance with every requirement of the statute. The question arises, Why did not the mining company make return of the net proceeds of the Grand Central mine in the same manner? It could have done so on exactly the same kind of form, at least as far as the name of the owner, name of the mine, location, net proceeds, and value were concerned. An assessment made on such return would have been a substantial compliance with the statute and all that could be demanded in cases of this kind. So that there is nothing in that point in favor of the company in any manner tending to show its good faith or excusing its failure to make a proper return. But after all the delinquency of the mining company affords no excuse to the defendants for failing to make a proper assessment — an assessment which would not result in injury or hardship either to the taxpayer or to the taxing district. Let it be understood that the members of the court subscribing to this opinion do not charge the defendants with willful and intentional wrong. The most that can be said in that respect is that the defendants suffered themselves to be misled by the returns of the mining company, which may or may not have been prompted by gainful motives. One thing is absolutely certain — the mining company did profit financially by the so-called assessment made on the returns of the mining company, which returns were palpably insufficient.

Before concluding our opinion we make the further observation that even if we concede, which we do not, that several distinct and separate mines may be consolidated and operated as one mine and assessed as one mine, it is indisputably essential, where they are located in two or more separate taxing districts, to so assess the mine that the net proceeds in each district may be separately taxed. As stated by the Chief Justice in the original opinion in this case and approved by a majority of the court:

"If one mine is located in two separate taxing units it would be the duty of the taxing authorities, so far as they might, to separate the net proceeds taken from the mine in the different taxing units. In no other way can the provisions of section 10 of article 13 of the Constitution be given effect. Said section is as follows: ``All corporations or persons in this state or doing business herein shall be subject to taxation for state, county, school, municipal and other purposes, on the real and personal property in or used by them within the territorial limits of the authority levying the tax.'"

So that whatever may be the ultimate conclusion as to what constitutes a mine for taxing purposes, it ought to be conceded that the Grand Central mine was not assessed in 1924, and that the pretended assessment relied on by defendants is void as far as the rights of Mammoth City are concerned.

The following cases decided by this court are cited and relied on by the defendants and in the prevailing opinion: Juab Countyv. Bailey, 44 Utah, 377, 140 P. 764; Rich County v. Bailey, 47 Utah, 378, 154 P. 773; Ririe v.Randolph, 51 Utah, 274, 169 P. 941. The same cases were cited and relied on at the original hearing of the case. In disposing of these cases in the original opinion it is said by the court:

"The court in those cases was dealing with assessments regularly made. The application for the writs were made subsequent to the dates upon which the county commissioners were required to have apportioned the property assessed to the taxing units. In the instant case it does not appear that the property has ever been assessed. If the record of the defendant board anywhere disclosed that the property mentioned in the affidavit had been assessed the rule stated in the cited cases would be conclusive against granting the writ."

That was a complete answer to the cases cited when the original opinion was written. We think it is a complete answer now. Section 5908, quoted in the prevailing opinion, provides that "any property discovered by the assessor to have escaped assessment may be assessed at any time," etc.

In 26 R.C.L. at page 351, it is said:

"Taxes are not canceled and discharged by the failure of duty on the part of any tribunal or officer, legislative or administrative. Payment alone discharges the obligation, and until payment the state may proceed by all proper means to compel the performance of the obligation. No statutes of limitation run against the state, and it is a matter of discretion with it to determine how far into the past it will reach to compel performance of this obligation."

The Grand Central mine, as we contend, was not assessed at all in 1924, and that is the distinction between the cases referred to and the case at bar.

From whatever standpoint we view this case, simple justice, under the law, demands that the writ prayed for by the plaintiff should be granted.