(concurring in part and dissenting in part).
I believe that Minn.Stat. § 273.02, subd. 4 (1980) violates the equal protection clause of the Fourteenth Amendment of the United States Constitution and the uniformity clause of Minn.Const. art. X, § 1. Accordingly, notwithstanding the majority’s well-founded concern over encroaching upon the authority of the legislature, I respectfully dissent.
The majority opinion makes much use of the omitted property statute, Minn.Stat. § 273.02 (1980), the validity of which is undisputed. Winona & St. Peter Land Co. v. Minnesota, 159 U.S. 526, 16 S.Ct. 83, 40 L.Ed. 247 (1895). The error in the majority opinion is that this is not a case of omitted property at all, but one of undervalued property. Omitted property is property that has completely escaped taxation. Several cases where the court has addressed the question of what constitutes omitted property are instructive. In County of Ramsey v. Chicago, M. & St. P. Ry. Co., 33 Minn. 537, 24 N.W. 313 (1885), a railroad claimed that lands it owned were exempted from taxation by state statute. The court held that the land was not exempt and that accrued taxes should be assessed under the omitted property provision then in effect, Gen.Stat. ch. 11, § 113 (1878), amended by Gen.L. 1881, ch. 5. Similarly, in Chun King Sales, Inc. v. County of St. Louis, 256 Minn. 375, 98 N.W.2d 194 (1959), the appellant argued that real estate it leased from the state was not subject to taxation. The court held that, because of the terms of the lease, the property was taxable as if owned by the appellant and the taxes owed would be assessed under Minn.Stat. § 273.02. Accord, B. W. & Leo Harris Co. v. Dakota County, 246 Minn. 20, 74 N.W.2d 111 (1955) (property held omitted within the meaning of Minn.Stat. § 273.02 where it belonged to corporation but was erroneously listed as belonging to city and thereby exempt); County of Redwood v. Winona & St. Peter Land Co., 40 Minn. 512, 42 N.W. 473 (1889) (property escaped assessment for 17 years where county auditor unaware its exemption had been lost).
By contrast, this court has held that, where a building on a parcel of land was not included in the assessment on that land, what occurred was not an omission, but an undervaluation. Davidson v. Franklin Avenue Investment Co., 129 Minn. 87, 151 N.W. 537 (1915). Considering the omitted property statute, Gen.Stat. § 1980 (1913), the court wrote:
*646Plainly this statute gives no power to reassess except where property is “omitted in the assessment of any year or years,” and “thereby escape [sic] taxation.” The real property in the present case was not “omitted” in the assessment of any year or years, and did not “escape taxation.” It was assessed and taxed each year, but was undervalued, the “improvement” not being noted. This building was a part of the realty. The law does not provide for assessing the land and improvements thereon separately. It cannot be said that the improvement was not taxed, as the assessments were upon the real estate, including both the land and the building. In other words this is not a case of “omitting” property in an assessment, but simply of undervaluing it.
129 Minn. at 89, 151 N.W. at 538.
Just as land and improvements are not to be assessed separately; in the present case, the majority states that the value of the iron ore is an integral part of the value of the property and is not to be considered separately. At 324 N.W.2d at 640. Here, the appellant, the State of Minnesota, and the County of Itasca all knew there was iron ore on this property. The only real question was the value of the unmined ore. This is not a situation where some element which, in the past has been totally excluded, is now added to the assessed burden of a taxpayer. It is not the reclassification of previously exempted property, for instance, or — to use an example provided by the majority — the inadvertent discovery of gold under a shopping area. At 324 N.W.2d at 641. Rather, the task is one of estimating the volume and purity of vast amounts of yet unremoved ore, estimates which, by their very nature, must be inexact.
So far, the determination of amounts of ore has been left to the mining companies themselves. It is neither surprising nor blameworthy that these companies should be conservative in their estimates. Often, there are “overruns,” where the quantity of ore actually extracted exceeds the original estimates. The state could have responded to this situation by itself taking a more active role in determining the size of ore reserves. Instead, it enacted legislation which recharacterized what is really undervaluation as omission in order to impose a heavier tax liability on iron mining companies.
If any doubt remains that the problem really is one of undervaluation, one need only consider the following. In determining the value of an ore reserve, the market price per unit of volume is every bit as important as the total size of the deposit. If, for some reason, ore prices were suddenly to increase, no one would say that in previous years there had been an omission. Even if a mining company deliberately used a low estimate of market price, the result would be undervalued, rather than omitted, property.1 Of course, this analysis would be meaningless if the issue were whether any iron ore existed under the company’s property; viz., if there were a true question of omitted property. That is not this case.
Not only does Minn.Stat. § 273.102, subd. 4 (1980) violate the equal protection and uniformity clauses by impermissibly distinguishing between owners of iron ore and other holders of undervalued property, it also unfairly differentiates between iron mining and other forms of ore and mineral production. The majority focuses on the problems inherent in valuing iron ore. The same problems, the same risk of “overrun,” exist in other mining or quarrying industries, yet, iron ore alone is singled out in the omitted property statute. This hardly conforms to the constitutional mandate of uniform taxation upon the same class of subjects.
That at least the various ore-producing industries comprise such a class is implicitly recognized in our state constitution. Minn. Const, art. X, § 3 requires that “[e]very person engaged in the business of mining or *647producing iron ore or other ores in this state shall pay to the state an occupation tax on the valuation of all ores mined or produced.” No one argues that all mining industries must be taxed identically in all respects. In Lyons v. Spaeth, 220 Minn. 563, 20 N.W.2d 481 (1945), this court held that article X, section 3 permitted different rates of taxation on different grades of ore and that such differing rates did not violate either the equal protection clause or the uniformity clause.
Nevertheless, Lyons dealt merely with a difference in the rate of taxation. Here, we have a difference in the manner of taxation. Although faced with the same problems of valuation as any other extractive industry, under Minn.Stat. § 273.02, iron ore producers are faced with the possibility of revised tax assessments for 6 previous years while other mineral and ore producers face such revisions for only 1 year.
The legislature has great power and flexibility in the area of taxation, see Guilliams v. Commissioner of Revenue, 299 N.W.2d 138 (Minn.1980), but the exercise of that power must not infringe upon the constitutional rights of our citizens. Nor is an otherwise unconstitutional statute acceptable because the burden it imposes is a small one. Minn.Stat. § 273.02, subd. 4 (1980) treats the producers of iron ore differently from other holders of undervalued property and from other mineral and ore producers. It is unconstitutional under the equal protection clause of the Fourteenth Amendment of the United States Constitution and the uniformity clause of article X, section 1 of the Minnesota Constitution.
I have noted an ominous trend in recent acts by the legislature which appear to reflect the goal of basing the taxation of real estate on the ability to pay. So many classifications of property now exist as to cause many inequalities in the tax. The real estate tax was never intended to be a tax on ability to pay, but rather an ad valorem tax, a tax on value. Even the United States government required a constitutional amendment to impose an income tax; yet, the legislature in Minnesota seems to reach the same result with the real estate tax absent a constitutional amendment. We all must remember that our constitutions— both state and federal- — were intended to protect not only one citizen from another, but also to protect all citizens from oppressive acts of the government. If the legislature can strike an illegal blow at the mighty and be permitted to get away with it, it can more easily strike again at those least able to respond. I think there is a point at which to call a halt to such activity, and this is a good opportunity.
I concur in that portion of the majority opinion dealing with the distribution of the proceeds of the tax.
. It is possible that property might be so “grossly undervalued” as to constitute an omission. See Davidson v. Franklin Avenue Investment Co., 129 Minn. 87, 90, 151 N.W. 537, 539 (1915). There is no indication that this is so in the present case.