Copper Queen Consolidated Mining Co. v. Territorial Board of Equalization of the Territory

CAMPBELL, J.,

dissenting. — I am unable to concur in that portion of the opinion of the majority of the court which holds that the territorial board of equalization has power to increase or decrease valuations of classes of real estate, other than by those classes expressly recognized by the statutes.

The application for the. writ discloses that the board added to the assessed valuation of patented mines as a distinct class of property. Looking to the statutes to ascertain the classifications of property recognized therein for purposes of taxation, we find, first, the general classification into real and personal. Rev. Stats. 1901, par. 3831. By paragraph 3835 each of these two general classes is defined; the term “real estate” being declared “to mean and include the ownership of, or claim to, or possession of, or right of possession to, any land within the territory”; the term “personal property” to mean and include all property not included in the term “real estate.” Paragraph 3836 provides: “Land, and the improvements thereon, shall be separately assessed.” By paragraph 3848 it is made the duty of every person owning or having the control of taxable property tc- make a list of the same, and deliver it to the assessor. Paragraph 3849 provides: “The *402said list shall contain, first, his lands by section, or part of section, township, and range, and where such part of section is not a legal subdivision, or is unsurveyed, some other ■ description sufficient to identify it, and his town lots, naming the town in which they are situated, and their proper description by number of lot or block, or otherwise, according to the system of numbering in the town; second, the improvements on all such land and town lots; third, his personal property of every description, or property held by him or under his control as an agent, or in any fiduciary capacity. ’ ’ Paragraph 3861 makes it the duty of the assessor to prepare an assessment-roll, and prescribes what it shall contain: He must set down in a separate column “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. ’ ’ Thus, we find that the legislature has classified real estate for the purposes of taxation, as follows: Town or city lots, improvements thereon, land outside of towns and cities, improvements thereon, improvements on public lands; and nowhere in the statutes are taxpayers, assessors, or boards of supervisors required, either in express terms, or, as I can perceive, by reasonable inference, to make or to enter upon the assessment-rolls further or different classifications. Their full statutory duty is performed when they have placed upon the roll real estate and valuations, classified as the statute directs. For the use of the territorial board of equalization, the clerks of the county boards of equalization are required by paragraph 3877 each to “make an abstract containing the whole number of acres of land, other than town or city lots, listed in the county, and the valuation thereof, and the value of the improvements thereon; the total valuation of town or city lots, and the value of the improvements thereon; the whole number of miles of railroad within the county, and the value thereof”; and the whole number of horses, asses, cattle, sheep, swine, and goats, with their respective total values; “the gross amount *403of all other property.” And by the same paragraph it is provided: “But the territorial board of equalization is authorized to diminish or add to the above list, and to require such different or further matters to be returned as it may deem advisable. ’ ’ It will be observed that paragraph 3877 preserves the classification of real estate heretofore indicated.

The majority of the court seem to rest the power of the territorial board to increase or decrease valuations by subclasses of real estate upon two propositions: 1. That there is no prohibition upon the assessors extending upon the rolls the description of land beyond that required in the statute, so as to designate its particular character, and, therefore, having done so,.the board may act upon such subclassification; and 2. That they find authority in paragraph 973 for the boards of supervisors to require assessors to subclassify real estate upon the rolls, and in paragraph 3877 power in the territorial board to require the county boards to make return as a distinct class of any subelassification appearing upon the assessment-rolls. I can see no force in the first contention. It is leaving to the various assessors to say upon what sub classifications the territorial board shall act. , Next year they may choose to do only what the law requires of them, — place upon the assessment-rolls lands outside of cities and towns by acres, without reference to whether they are cultivated or grazing, mineral or non-mineral. The clerks of county boards of equalization can only abstract what the rolls contain. Therefore, the territorial board cannot under such conditions know from the abstracts that there are any mineral lands in the territory. I think I may without impropriety use for purposes of illustration an allegation appearing in the petitions for writs of mandamus now pending in this court, involving the proceedings of the territorial board. It appears that for the year 1905 but two of the assessors of the various counties placed upon the assessment-rolls as a separate class improvements upon patented mines. It is a notorious fact that such improvements exist in nearly, if not all, of the counties of the territory, — a fact that is probably within the personal knowledge of every member-of the board of equalization; yet the assessors were clearly within the law in returning them simply as improvements upon land, and the board prevented from equalizing such assessments in the various counties.

*404Conceding, as found by tbe majority of tbe court, that tbe supervisors may require the assessors particularly to describe upon tbe rolls tbe character of lands, it would seem to be a discretionary power. It is reading too much into tbe statute to say that paragraph 3877 gives tbe territorial board supervisory power over tbe county boards in tbe exercise of their duties regarding tbe preparation of tax-rolls. I construe tbe provision, “but tbe territorial board of equalization is authorized to diminish or add to tbe above list, and to require such different or further matters to be returned as it may deem advisable,” to empower tbe board only to require tbe clerk of tbe county board to abstract by classes tbe property included within “tbe gross amount of all other property.” I do not understand tbe majority opinion to bold that tbe territorial board may require tbe county boards to require assessors to so describe lands upon tbe assessment-rolls that they may be subclassified, but only to bold that, tbe assessors having so described it, tbe territorial board may require the county boards to abstract tbe information tbe rolls contain. This leaves tbe territorial board without power to cause,tbe information to be placed upon tbe rolls, should tbe boards of supervisors not choose so to direct tbe assessors. What we are seeking is tbe true intent and meaning of tbe legislature, and surely it cannot be said that tbe legislature meant to leave tbe territorial board, in tbe exercise of such important powers, dependent upon tbe will of the various boards of supervisors. Tbe power to classify personal property to some extent is expressly given. Tbe owner of taxable personalty is required to describe it to tbe assessor; and from the provisions of paragraph 3877 tbe duty of tbe assessor to describe it on tbe assessment-roll by classes is clearly inferable. It may be doubted, however, whether be is required to subelassify, for instance, horses, as work, saddle, and range. Upon this I do not think it necessary to -express an opinion.

For tbe reasons indicated I am of tbe opinion that tbe demurrer to tbe application should be overruled.

DOAN, J.

I am unable to concur with my associates in tbe interpretation given tbe statutes in this case. I think tbe writ was properly issued, and tbe demurrer should be overruled. I agree substantially with tbe views expressed by Mr. Justice Campbell herein.