(dissenting).
I add my dissent to that of Mr. Justice PHELPS. I dissent on the following grounds:
The majority opinion 1) disregards res judicata and our statutes; 2) is guilty of judicial legislation; 3) condones double taxation; 4) ignores stare decisis re: “Development” costs.
I will use the terms, “court” in referring to the majority opinion; the “state”.in referring to appellant; the “company” in referring to the appellee.
Res Judicata and Judicial Legislation.
The following sections of 1939 A.C.A. are pertinent: •
Sections 73-106 empowers the tax commission to assess producing mines.
Section 73-202 provides real estate shall be assessed separately from improvements. Real estate includes patented mines.
Section 73-402 empowers county assessors to assess all property except as otherwise required by the State Tax Commission.
According to law the county assessor assessed the company’s improvements and personal property in the sum of $146,405. The company failed to object to the assessment as provided by law to the board of supervisors sitting as a board of equalization in June and again in July of that year. Section 73-419 provides the method of appeal from the county board of equalization. The company accepted the assessment of the county assessor and the matter became final and is therefore res judicata.
The company appealed under section 73-110 which provides for an appeal from the state board of equalization which allows the parties to adduce evidence tending to establish “full cash value of the property in question”. The company’s evidence proved that the value of the ore which was reduced to cash and was on hand as cash, was ........................ $235,868.64 Estimated profits on ore reserves 45,100.80
Total ............... 280,969.44
The company’s contention is that the above figure less Hoskold’s discounts and less the assessed value of the plant and equipment plus the salvage value of the plant and equipment, is the true value of *381the mine. By such calculation we arrive at the following:
Total value of cash and ore on hand less Hoskold discounts 260,158.03
Less value of plant........... 146,405.00
Actual value of cash and ore.. 113,753.03
Plus salvage value of plant____ 46,228.00
Total value of cash and ore (i. e. mine) .................. 159,981.03
Plus value of equipment....... 146,405.00
Total value, both mine and plant 306,386.03
Such maneuvering amounts to the substitution of the salvage value in place of the assessed value of the plant and personal property, and no amount of argument or explanation can change that simple statement.
By approving such a method of evaluating the mine and plant the court has substituted its own formula in place of what is prescribed by law and therefore the court has disregarded the statutes and is guilty of judicial legislation.
The province of the trial court was to find the value of the ore and cash on hand, and not consider the value of the plant which value was accepted and not appealed from and therefore settled. In order to consider the two values together the statutes should be changed by taking the assessment power away from the county assessor and confer it upon the tax commission. Thereby the commission could consider the value of the plant in with the mine. Then upon appeal from the tax commission assessment, the trial court could consider the value of both mine and plant together as it has in this case. However, by so doing it in the instant case it has disregarded the statutes.
Double Taxation
Paradoxically, the method contended for by the mining company amounts to double taxation. This procedure, contrary to section 73-201 which says “Nothing herein shall be construed to require or permit double taxation” is condoned by this court. Such “double taxation” is contended for by the mining company because by substituting one value for another it actually gives them a tax advantage. To illustrate:
The ore value was found to be $260,158.03 which included the value of the plant (According to the court)
In order to find value of ore deduct.................... 146,405.00
Actual value of the ore on hand 113,753.03
Therefore by paying the county treasurer the taxes on the plant, they admit its value and the legality of the tax thereon.
With the value of the cash and ore on hand worth.......... 113,753.02 the mining company says, and this .court agrees with it, that now we have reduced it too much and therefore we should add the salvage value of the plant in the sum of........... 46,228.00
Total value of cash and ore on hand 159,981.03
*382Counsel for the mining company in their argument before the court indicated that $5,000 or $10,000 is more nearly the true salvage value of the plant but agreed that the figure of $46,228.00 looked better than the true salvage value. No matter what amount was added, whether it be $5,000 or $50,000, it should not have been added because the mining company already paid the tax on the value of the plant, to wit, $146,-405.00, and to add any part of that value to the mine amounts to double taxation, which is contrary to law.
Stare Decisis
The court relies on the former decisions of this court in upholding the trial court, to wit: State Tax Commission v. United Verde Extension Mining Co., 39 Ariz. 136, 4 P.2d 395; State Tax Commission v. Magma Copper Co., 41 Ariz. 97, 15 P.2d 961; and State Tax Commission v. Phelps Dodge Corporation, 62 Ariz. 320, 157 P.2d 693, 694.
An examination of the first two cases will reveal that the question of the substitution of the salvage value of the plant in the place of the assessor’s value was not raised on appeal and was not decided in those cases. The matter was directly raised by assignment of error in the 'Phelps Dodge case but was never answered by the court except in its statement before it reached the question of assignments of error. In its statement it merely said: “ * * * It was made to appear from their testimony that the plant, mill, and personal property were of no value, except for salvage purposes, without the mine, and likewise that the mine was of no value without the plant, mill, and personal property. To find the ‘full cash value’ of the mine, as distinct from the plant, mill, and personal property, requires that the amount fixed by the County Assessor,, to-wit $3,109,079, as the'assessed valuation of the plant, mill, and personal property, be subtracted from the individual estimates of the engineers to arrive at the valuation placed on the mine alone by any particular valuation engineer.
The mining company has cited no authority from other jurisdictions where such a formula is approved, neither has it cited any recognized mining authorities, except during argument counsel referred to mining engineers Hoover and Finlay. An examination of Principles of Mining by Herbert C. Hoover (1909) and the Economics of Mining by Theodore Jesse Hoover (1933) does not reveal any such formula as contended for by the mining companies. The work of Finlay was not available for examination.
The following articles on the “Formulas for Mine Valuation” taken from Mining Scientific Press:- June 29, 1918, p. 882; December 27, 1919, p. 925; August 21, 1920, p. 270; November 23, 1918, p. 682; May 24, 1913, p. 766; May 18, 1918, p. 213, reveal no such formula.
Apparently Arizona is unique in its method of evaluating producing mines!
The state also assigns as error the fact that the undisputed evidence presented by *383the company shows that for the last five months of 1949, there was allowed for development work a charge of $129,664.80 against a net profit from the ore bearing that burden of at most $45,100.80. Actually the amount spent for development work was $3.17 per ton on the reserve ore of 46,980 tons or a total of $148,926.60.
The court concludes that this was an allowable deduction from the gross valuation of the ore. To reach this result, they rely on certain language found in State Tax Commission v. Magma Copper Co., supra [41 Ariz. 97, 15 P.2d 963]: “If, however, by ‘development” costs is meant in reality the work reasonably necessary in order to extract the ore, either proved or probable, for which allowance has already been made in estimating the gross value of the mine, such work is a legitimate charge against such gross valuation.”
The majority say:
“It appears to us that the state is confusing the terms ‘exploration’ and ‘development’ * * * and “It is our understanding that the terms ‘development’ and ‘exploration’, although sometimes confused in common speech, are not synonomous. * * * ” 241 P.2d 808.
In the recent case of State Tax Comm. v. Eagle-Picher Mining & Smelting Co., 71 Ariz. 290, 226 P.2d 555, 557, decided by this court on January 15, 1951, the same mining company was seeking to allow a charge for development costs of $74,271.00 where but $10,000 (Net Profit) was to be credited for tax purposes. In that case, we held after considering the Magma Copper Co. case, and the supposed distinctions, that:
“According to the language used in the Magma Copper Co. case, supra, .a mining company is only justified in deducting money, to be spent for development purposes, from the assessed valuation of the mine, where it is shown that the ore to be developed is of a greater value than the amount spent for the development of that ore, and this ore value then added to the valuation of the mine.
“In this case, it appears that the trial court found that the net value of the ore to be developed from the expenditure was $10,000.00, whereas in any event, if a deduction is allowed, as was the case here, the value of the ore to be developed must arbitrarily be fixed at a sum not less than the allowed deduction, to wit: $74,271.00, and this figure added to the value of the mine. Of course, if the value of the ore to be developed, exceeded the allowed deduction then such value would be added to the value of the mine.”
Had the majority opinion considered the recent Eagle Picher case, supra, it would be impossible to sustain the mining company’s contention. Apparently, the Eagle Picher case, supra, is overruled by the court in the instant case, based on the language in the Magma Copper Co. case, which the Eagle Picher case, supra, was supposed to clarify.
*384If we were to follow the latest Eagle Picher case, then any amount the mining company spends for “exploration and development” and deducts such amount as costs from its gross income, then such amount shall be added to the valuation of the mine even though such “exploration and development” didn’t result in the discovery of any new ores. Such a holding is reasonable and correct. That sum ($148,-926.60) should be deducted from “cost of production and marketing” and will therefore increase “estimated profit on ore reserves” to $194,027.40.
The following tables are presented for comparison — Table I as presented by the mining company; Table II as I think it should be, which shows a gross valuation of mine and plant in the sum of $561,929.43.
TABLE II TABLE I
As Presented Should Be
Mined 46,308 Tons Reserve 46,980 Tons Mined Reserve 46,308 Tons 46,980 Tons
Estimated value ore reserves $1,613,531.64 $1,349,735.40 $1,613,531.64 $1,349,735.40
Less cost of Production and marketing 1,377,663.00 1,304,634.60 1,377,663.00 * **1,155,708.00
Estimated profit on ore reserves 235,868.64 45,100.80 235,868.64 194,027.40
Total profit ore reserves 280,969.44 429,896.04
Discount future Profits to cash value (using Hoskold Table) .92593 260,158.03 **415,524.43
Scrap value of plant @ $50,000. with 4% disct. for 2 yrs. to reduce to cash value 0.92456 46,228.00 None ***
Total cash value mine & Equip. 306.386.03
Less assessed value of personal property 146,405.00
Value of mining property 159.981.03
Plus assessed value of personal property 146,405.00
Value of mining property $ 561,929.43
Development costs of reserve ore amounting to 3.17 per ton deducted from cost of production and marketing.
Hoskold Table used on reserve ore only as mined ore value has been received.
Salvage value not applicable as no information showing total value of personal property has not been recovered through cost of production and marketing.