a uniform apportionment, and while the same rule of uniformity is not employed in the apportionment of all taxes, the requirements of the different State constitutions are essentially the same, as regards the equality and uniformity of the basis of taxation." The rule of apportionment must be the same for all persons and for all the different sections of the taxing district, and the apportionment is generally made according to the value of the property taxed, for the reason this will bring about a more perfect equalization of the tax than any other rule. The United States government is authorized by the Constitution to impose direct taxes, but the provision that requires that the tax shall be uniform throughout the government necessarily compels that the apportionment should be made according to the representative population of the different States. The different States have the right under the exaction of license fees to tax the different occupations within the State, but this authority is construed strictly by the courts; the particular calling must be named,' and if it is not dangerous to the public, it cannot be subjected to any police regulation, which does not fall within the power of taxation.8

1 See Con. U. S., Art. I., Sec. 8. "A statute which directs a tax upon the proceeds of mines upon an assessment of three-fourths of their value, is unconstitutional, under the provision for equal taxation." And when the proceeds of mines are liable to tax, instead of the real estate, the whole of such proceeds, and not a fraction, must be the basis of such tax. State v. Estabrook, 3 Nev. 173.

2 See Constitutions different States.

3 Tiedeman's Pol. Pow., p. 479.

4 Tiedeman's Pol. Pow., p. 478.

5 Tiedeman's Lim. Pol. Pow., supra.

6 Commonwealth v. Ocean Oil Co., 14 M. M. R. 126.

State v. Eureka Co., 14 M. M. R. 165.

8 Tiedeman's Pol. Pow., p. 273, et sub. "A mining company assaying its own ores, is required to pay a special tax as assayer under Div. 48, Sec. 79, Internal Revenue act of June 30, 1864, as amended in 1866." Yellow Jacket S. M. Co. v. G1ze, 1 Sawyer, C. C. 494; M. M. D. 369.

§ 408. Right to tax mining property. The different States have the right to levy a tax upon mining property, the same as any other property located within the State,1 and the right extends not only to the property owned by the individual citizen of the State, but also to the possessory right of the claimant and the mineral located upon public lands. The legislatures of the different States, however, do not possess the authority to levy a tax upon the claimant of public mineral land, assessed according to the value of the land upon which the claim is located," for as the title to such land is possessed by the general government alone, this is the only power that would have the authority to levy such a tax, and the right of the

1 Hersey v. Barron Co., 37 Wis. 79; Mil. Iron Co. v. Hubbard, 29 Id. 51. And the mineral itself, since it can by conveyance become separate property, may be taxed as other real estate. Stuart v. Commonwealth (Ky.), 23 S. W. Rep. 367; Palmer v. Conwith, 3 Chand. (Wis), 297; Logan v. Washington County, 29 Pa. St. 373; City of Virginia v. Challor &c. G. & S. M. Co., 2 Nev. 86. But an attempt to impose a tax on mineral exported from the State is void, as an attempt to regulate commerce between the States. Jackson M. Co. v. Auditor-Gen., 32 Mich. 488; Brumagin v. Tillingast, 18 Cal. 266.

2 State v. Moore, 12 Cal. 56; aff'd People v. Shearer, 30 Cal. 645; Hale &c. G. & S. M. Co., v. Storey Co., 1 Nev. 105.

3 State v. Moore, 12 Cal. 66; Forbes v. Gracey, 94 U. S. 762. "The interest of the occupant of a mining claim is property, and under the constitution it is in the power of the legislature to tax such property." State v. Moore, 12 Cal. 56; M. M. D. 366. "Possessory rights to mining claims are property, and as such are taxable. Taxation of such possessory rights is not in violation of the organic act of Nevada territory, which prohibits taxation of the property of the United States. The object of such provision in the organic act was to protect the government, and not to prevent the taxation of such interests as settlers might acquire upon the public lands. The words, mining ground,' when used in a deed, have a technical meaning. They refer to the interest of the occupant. They are not the words used when a fee-simple or leasehold interest in real estate is to be conveyed; and, when used by the assessor, are a proper description of the taxable interest." Hile and Norcross G. & S. M. Co. v. Storey County, 1 Nev. 105; M. M. D. 366.

State is limited to the value of the locator's claim, as the possessory right of the miner is the only property under the jurisdiction of the State to tax.1 The State cannot tax an interest in mining property which in reality is nothing but a mere chose in action, but until the mineral taken from mines within the State has been removed beyond the boundaries of the State, the same may be taxed as property in that State, and the tax could be collected, even though the mineral be subsequently removed beyond the boundaries of the State, when the property was removed before the amount of the tax was determined, or the manner of enforcing the levy decided upon.4

§ 409. Basis of taxation of mining property. - Not only the land itself, upon which a mine is located, but all manner of mines and quarries, as well as the mills, furnaces, plants and works are subject to taxation, as a part and parcel of the land itself." And while it would seem that there could be no separate assessment upon the value of a mine before the same was opened, as no mine, in fact, existed previously, still, under the English Income statute, the act was held to apply to a mine not opened when the law was passed, as it was held to be but land and the potential profit therefrom, which was in existence when the law was enacted. Under the English

6

1 Ante, idem. People v. Black Dia. C. M. Co., 37 Cal. 54.

2 Jackson Co. v. Auditor Gen., 14 M. M. R. 182.

3 Silver bullion is such property. Hope Min. Co. v. Kennon, 14 M. M. R. 189; State v. Northern Belle Co., 14 M. M. R. 211; State v. Eureka Co., 14 M. M. R. 165.

4 People v. Horn Silver Co., 105 N. Y. 76.

5 MacSwinney Mines, p. 551; Barringer & Adams, p. 113.

65 & 6 Vict., C. 35, Sch. A.

7 Colchester v. Kenney, L. R., 2 Exch. 257; R. R. v. Randall, 4 E. & B. 564. By statute, in Utah, the tax is upon the net annual proceeds of

law the income from a mine is assessable according to its annual value, based upon the profits of the preceding year, subject to abatement or discharge on the diminution or failure of the mine,1 but no allowance is made for capital exhausted in realizing the profit or expense incurred in opening the mine,2 the annual benefit or "profit received" being used as the measure of taxation to which the property is subject. The recent law by Congress under which incomes were made taxable in the United States was held to be unconstitutional by the Supreme Court."

§ 410. Same Surface and ore deposits. -The duty of paying taxes, being primarily upon the owner of the land, so long as the ownership of the ore is the same as that of the surface, the surface owner should pay taxes upon the ore in place, as a part and parcel of his land." But when there is a severance of the titles and the ownership of the ore passes to other than the surface owner, he should bear the burden of his own property, the same as the surface owner should, and the surface and the mineral in place should be accordingly assessed to the

mines. Cen. Eureka Min. Co. v. Juan Co., 22 Utah, 395; 62 Pac. Rep. 1024.

1 MacSwinney on Mines, 552. Quarries are not taxable as "mines." Jones v. Crowthen Co., 4 Ex. Ch. D. 97.

2 Knowles v. McAdam, 3 Exch. D. 23; Coltness Co. v. Block, 6 App. Cas. 315; Ryhope Co. v. Thayer, 7 Q. B. D. 485.

3 Coltness v. Block, supra. 4 See Income Tax Cases. In the United States, the income of a mine is no criterion for an assessor in making a valuation. State v. Randolph Twp., 14 Mor. Min. Rep. 103; State ex rel. v. Dickinson, 25 N. J. L. 427; 14 M. M. R. 103; California v. Moore, 12 Cal. 56; 14 M. M. R. 110.

5 Heckshear v. Sheafer, 17 W. N. C. 323; Logan v. Washington County, 29 Penn. St. 373; Virginia v. Potosi Co., 14 Mor. Min. Rep. 120: State v. Moore, 14 M. M. R. 110.

respective owners.1 But after the title to the ore is severed from that to the surface, no higher valuation should be put upon the interests separately than existed when the same person owned both surface and ore,' and before a severance of the title to the ore from that of the surface the ore and land must both be assessed together and the surface and the ore cannot be separately valued, as where the titles to the same are distinct.3

Generally

§ 411. Relative duties of lessor and lessee. speaking, in the absence of contract, the lessor is under the duty to pay the taxes upon ore in place, and the lessee to pay for all improvements annexed by him, as well as upon all ore severed from the soil, for both would be per

5

1 Sanderson v. Scranton, 105 Pa. St. 469; Logan v. Washington County, 14 Mor. Min. Rep. 108. "Minerals removed from the land and converted into personal property may be taxed as such." Palmer v. Conwith, 3 Chand. (Wis.) 297; M. M. D. 366, 868. Oil in place is a part of the real estate and cannot be taxed as personalty against a lessee, until it reaches the surface. Carter v. Tyler Co. Ct., 45 W. Va. 806; 43 L. R. A. 725; Kelly v. Ohio Oil Co., 57 Ohio St. 317; 39 L. R. A. 765.

2 Logan v. Washington County, 14 M. M. R. 108; 29 Pa. St. 373; Sanderson v. Scranton, 105 Pa. St. 469; Forbes v. Gracey, 14 M. M. R. 183; People v. Black Diamond Co., 14 Idem, 162; Hale v. Storey County, 14 Id. 115.

3 Scranton v. Gilbert, 16 W. N. C. 28. "Under 1 Ballinger's Ann. Codes & St., § 1698, providing that realty on which is a mine shall be valued at such price as such property, including the mine, will sell for at a fair voluntary sale for cash, where improvements on mining claims include ! tunnels and buildings, or operating the mines, the realty and improvements may be valued for taxation as a whole." (Wash. 1902.) Eureka Dist. Gold Min. Co. v. Ferry County, 68 Pac. Rep. 727. The surface and minerals are separately taxable. Sanderson v. Scranton, 105 Pa. St. 469; Delaware Co. v. Sanderson, 109 Pa. St. 583.

4 Flory v. Heller, 1 Monaghan, 478; Welsh v. Reinhard, 14 Mor. Min. Rep. 175.

Heckshear v. Sheafer, 17 W. N. C. 323; Stanley v. Pittsburg Co., 14 M. M. R. 214.

6 Woodward v. D. L. & W. R. Co., 121 Pa. St. 344. Where lease has