The clerk had no authority to assign the cer-
tificate after the lapse of three years; a deed
executed upon such an assignment is void
upon its face. It was properly rejected.
Empire Ranch & Cattle Co. v. Coldren, 117
Pac. 1005; Carnahan v. Sieber Cattle Co., 34
Colo. 257, 82 Pac. 592; Bryant v. Miller, 48
Colo. 192, 109 Pac. 959; Page et al. v. Gil-
lett, 47 Colo. 289, 107 Pac. 290.
The judgment is affirmed.
Affirmed.

MUSSER and GABBERT, JJ., concur.

(52 Colo. 459)

has been frequently stated that where a Judgment is relied on as an estoppel, as an adjudication upon the subject-matter, or as establishing any particular state of facts of which it is the judicial result, it can be proved only by offering in evidence a complete record or a duly authenticated copy of the entire proceedings in which the judgment was rendered." That the judgment offered in evidence was relied upon as an estoppel, as an adjudication against the plaintiff upon the subject-matter, and as establishing that particular state of facts against him, cannot be questioned. In such cases, so far as we are advised, the rule announced in Cyc. appears to be sustained by an un- FOSTER, County Assessor, et al. v. HART broken line of authorities. Jansen v. Hyde, 8 Colo. App. 38, 44 Pac. 760; 1 Wharton, Law of Evidence (3d Ed.) § 824; 2 Freeman on Judgments (4th Ed.) § 407; Harper v. Rowe, 53 Cal. 233; Mason v. Wolff, 40 Cal. 246; Mitchell v. Mitchell, 40 Ga. 11; Thomas v. Stewart, 92 Ind. 246; Vail v. Iglehart, 69 Ill. 332; Kenyon v. Baker, 16 Mich. 373, 97 Am. Dec. 158; Hampton v.. Speckenagle, 9 Serg. & R. (Pa.) 212, 11 Am. Dec. 704; Walls v. Endel et al., 20 Fla. 86; State ex rel. Nave v. Hawkins et al., 81 Ind. 486; Davidson v. Murphy, 13 Conn. 213; Smith et al. v. Smith et al., 22 Iowa, 516; Donald et al. v. McKinnon, 17 Fla. 746.

CONSOL. MINING CO.

(Supreme Court of Colorado. March 4, 1912.) 1. TAXATION (§ 42*) - CLASSIFICATION MINES-VALIDITY OF STATUTES.

OF

Rev. St. 1908, §§ 5617-5620, 5625, 5665, providing for the taxation of gold, silver, lead, copper, etc., mines, are not unconstitutional on the ground that the provision for assessment per annum as a basis on which producing and fixing the gross production in excess of $5,000 nonproducing mines shall be classified, is invidious and unreasonable, nor is the act invalid on the theory that the provisions of section 5665 will produce inequalities because a group of claims constituting one producing property is not required to pay any greater tax than a producing property consisting of one claim or a fraction of a claim producing

a similar amount.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 90-95; Dec. Dig. § 42.*] 2. TAXATION (§ 42*)

MINES-DISCRIMINATION.

CLASSIFICATION OF

[1, 2] This being the general rule, what effect should be given to section 71, Revised Code 1908? It reads as follows: "In pleading a judgment, or other determination of a court or officer of especial jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish on the trial the facts con-earth not classed as precious. ferring jurisdiction." The purposes intended by this section were to simplify the pleadings pertaining to a judgment; but when the jurisdiction of the court to render it is controverted, the method of proving it is in no respect changed. The question of the court's jurisdiction to enter this judgment was controverted. The defendant was fully advised of this fact, yet saw fit to limit his offer to the judgment alone, when the objection was to its incompetency without being accompanied by the judgment roll. der these circumstances, the ruling of the trial court was correct in sustaining the objection.

Rev. St. 1908, §§ 5617-5620, 5625, 5665, providing for the taxation of gold, silver, lead, copper, etc., mines, are not invalid as discriminating in favor of one class of mining properties as against others, because section 5625 does not apply to mines of iron, coal, quarries. and lands containing other metals, minerals, or

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 90-95; Dec. Dig. § 42.*] 3. TAXATION (§ 40*) PROPERTY-VALIDITY.

CLASSIFICATION OF

So long as classification is based upon the nature of property justifying it, there is nothing to forbid legislative classification for the purposes of taxation, or to prevent the fixing of valuation of different classes by different methods, provided that by the method preburden of taxation is uniformly imposed upon scribed for a particular class of property the that class, is just and equitable, and does not. Un-exempt it from bearing its fair proportion of the burden, as compared with other classes of

[3] The second alleged error pertains to the rejection in evidence of a tax deed; this presents the question of whether it is void on its face. The tax deed shows the sale of the land to the county to have occurred upon the 21st day of October, 1896, and that the county clerk assigned the certificate to certain individuals on the 31st day of December, 1900, more than four years after the sale.

property.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 68-89; Dec. Dig. § 40.*]

4. TAXATION (§ 317*)—ASSESSMENT OF PROPERTY-LEGISLATIVE POWER.

The Legislature cannot assess any class of property for taxation, that being the function of the respective county assessors, but it can guide the assessors as will secure a just valuaby general laws prescribe such regulations to tion.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 525, 526; Dec. Dig. § 317.*]

Rev. St. 1908, § 5625, which limits the assessment for taxation of nonproducing gold, silver, lead, copper, etc., mines to an amount per acre not exceeding the amount per acre at which the lowest producing mine in the same locality is assessed, is a valid exercise of the Legislature's power, and not an invasion of the functions of the assessor.

[Ed. Note. For other cases, see Taxation, Cent. Dig. 88 525, 526; Dec. Dig. 8 317.*]

En Banc. Error to District Court, Teller County; Charles Cavender, Judge.

Action by the Hart Consolidated Mining Company against T. D. Foster, county assessor, and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Sec

5. TAXATION (} 317*)—ASSESSMENT-POWERS | is situate, a statement showing: First. The - OF LEGISLATURE. name of the mine or mining claim; Second. The name or names of the owner or owners thereof; Third. The number of acres contained in such mine or mining claims; Fourth. The number of tons of ore extracted during the preceding year; Fifth. The gross value of any such ore extracted in dollars and cents; Sixth. Actual cost of extracting the same from mine, which shall not include the salaries of any officers or agents not actively and consecutively engaged in or about the mine; Seventh. Actual cost of transportation to place of reduction or sale; Eighth. Actual cost of treatment, reduction or sale; Ninth. The net proceeds in dollars and cents after deducting the above expenses. * The question involved is the validity of tion 5619, Id. "The assessor, when he retaxes assessed against nonproducing mining ceives such statement, shall determine the properties located in Cripple Creek mining district. The determination of this question gross proceeds of any such producing mine or requires a consideration of the following pro- mining claim for said preceding year, and vision of our Constitution (article 10, 8 3): shall, at the same time, determine the net "All taxes shall be uniform upon the same proceeds as herein defined for said preceding class of subjects within the territorial limits year, and shall, for the purpose of assessof the authority levying the tax, and shall ment for taxation, value such producing be levied and collected under general laws, mine or mining claim at a sum equal to onefourth of the said gross proceeds for said which shall prescribe such regulations as shall secure a just valuation for taxation of preceding year for any such mine or mining all property, real and personal." And also claim; provided, however, that if the net the following provisions of the revenue law proceeds as herein defined of any such proof 1902: "All taxable property shall be list- ducing mine or mining claim for said preed and valued each year, and shall be as- ceding year exceeds one-fourth of the gross sessed at its full cash value, land to be listed proceeds, as herein defined, then any such and valued separate and apart from the per-producing mine or mining claim shall be sonal property and improvements thereon." valued, for the purpose of assessment for Section 5529, Rev. Stat. 1908. "In determin- taxation, at the amount determined by the ing the true value of taxable property, exassessor as the net proceeds for said preced cept as otherwise provided in this act, the ing year for any such producing mine or market value shall be the guide; · mining claim." Section 5620, Id. provided, however, that this section shall Provided, that the manner of assessment and not be held to apply to the assessment of taxation, in the sections hereinabove set mines or mining claims bearing gold, silver, forth, shall apply only to mines and mining lead, copper, or other precious metals and claims bearing and producing gold, silver, possessory rights therein, but the same shall lead, copper, or other precious or valuable be assessed under the provisions of sections metals or minerals, and shall not be con81 to 81-H, 82 and 83 of this act, whether the strued to apply to mines of iron, coal, asphalsame shall be owned by a corporation or tum, quarries, and lands valuable because not." Section 5591, Id. "All mines and min-containing other metals, minerals or earths, ing claims bearing gold, silver, lead, copper, or other precious or valuable minerals, and possessory rights therein, are hereby, for the purpose of assessment for taxation, divided into two classes, to wit: Producing and nonproducing." Section 5617, Id. "All mines and mining claims whose gross production shall exceed five thousand ($5,000) dollars in dollars and cents per annum, shall be classed as producing mines, and all others shall be classed as non-producing mines." Section 5618, Id. "Every person or persons, corporation or association owning or operating any mines or mining claims which shall be a producing mine, as herein defined, shall, between the first and fifteenth days of JanJary, each year, make out and deliver to the assessor of the county wherein such property

all of which shall be assessed and taxed like other property, according to the value thereof; and provided, further, that all mines or mining claims, or possessory rights therein, that are not producing gold, silver, lead, copper, or other precious or valuable metals or minerals, shall be assessed and taxed like other property according to the value thereof, and in ascertaining such value the assessor shall, in addition to the other requirements of this act, take into consideration the location thereof, the proximity to other mines or mining claims, and any other matters which may tend to assist him in arriving at a fair and equitable valuation of such property; and provided, further, that nothing in this act contained shall be construed as giving the assessor any right to as

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 122 P.-4

sess a non-producing mine or claim at a
greater sum per acre than is assessed per
acre against the lowest producing mine or
claim, as herein defined, situate in the
same locality." Section 5625, Id.
Contiguous mining claims or mining lands to
the knowledge of the assessor worked or op-
erated through or by means of the same
shafts, tunnels or other openings, or placer
claims, to the knowledge of the assessor
worked or operated by means of the same
ditch, or other works, shall be assessed in one
body, together with such ditches and works."
Section 5665, Id.

The defendant in error, the Hart Consolidated Mining Company, in its own and in behalf of a number of other companies and individuals similarly situated, brought suit, the purpose of which was to annul a portion of the taxes levied upon nonproducing mines in the Cripple Creek mining district belonging to the plaintiff and others in behalf of whom the action was instituted. It is unnecessary to give a synopsis of the pleadings, as the parties agree that the facts thus established, in connection with those stipulated, present the question of the constitutionality of the revenue act of 1902, relating to the assessment and taxation of nonproducing mines.

ing claim at a greater sum per acre than is assessed per acre against the lowest producing mine in the same locality. This appears from a stipulation entered into between the parties at the trial, as follows: "(8) In behalf of defendants, it is stipulated that, in making the, said assessment herein complained of, the assessor valued the nonproducing mine and mining claims for the purpose of taxation at about one-third of what he ascertained and found, or claims to have ascertained and found, to be the full cash value thereof, and that he uniformly followed this method of determining the values which he assessed against the nonproducing mining property in the Cripple Creek mining district for the year 1909." This method resulted in the assessor placing upon the nonproducing properties involved a greater valuation per acre than the producing properties in the same locality.

Tully Scott, Co. Atty., Thomas, Bryant, Nye & Malburn, and Guy P. Nevitt, Co. Atty., for plaintiffs in error. Hildreth Frost and Vaile, McAllister & Vaile (Karl C. Schuyler, of counsel), for defendant in error.

GABBERT, J. (after stating the facts as above). On behalf of plaintiffs in error, the main point upon which they base their contention that the judgment is erroneous and should be reversed is that the statutory provisions involved and relating to nonproducing mines are unconstitutional. Incidentally, at least, they contend that these provisions in so far as they relate to the assessment of producing mines are, also, unconstitutional, and we shall consider that question first as to some extent the constitutionality of the act relating to nonproducing properties depends thereon. The act of 1887 (Laws 1887, p. 340) provided that a certain per cent. of the gross proceeds obtained from ores ex

According to the undisputed facts, the assessor did not follow the law in valuing nonproducing mining properties, as above provided, but placed a value on such properties for the purpose of an assessment for taxation by determining the value thereof, without reference to, and independent of, the statutory provisions prescribing how the valuation of nonproducing mining property shall be determined for the purposes of taxation. As an example, the Hart Group belongs to the Hart Consolidated Mining Company. This group consists of a little over 30 acres. 'It is nonproducing, and was assessed at a valu-tracted from a mine during the preceding ation of $540 per acre. The Morning Star, an adjoining and producing mine, was assessed the same year at the rate of a little over $123 per acre. This valuation was assessed upon the basis of production. The cause was tried to the court, with the result that a judgment was rendered in favor of the plaintiffs, to the effect that the assessor could not lawfully and legally value the nonproducing properties involved at a greater sum or rate per acre than the lowest sum or rate per acre assessed on the producing mines or claims situated in the same locality. It should be further noted that the assessor, in valuing producing mines, followed the provisions of the law relating to valuation of producing properties, but refused to be guided by the provisions relating to the manner the valuation of nonproducing mining properties should be ascertained; that is to say, with respect to the latter class of properties, he refused to be guided by the provisions of section 5625 above quoted, which prohibit the

fiscal year should constitute its value for revenue purposes, and that it should be assessed and taxed accordingly. This act was considered in People ex rel. v. Henderson, 12 Colo. 369, 21 Pac. 144, and it was there held. that the act was not obnoxious to the provisions of the Constitution requiring taxes to be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and that taxes should be levied under general laws prescribing regulations which would secure a just valuation for taxes on all property. It was also held that the method prescribed by the act for determining the value of mining property for the purpose of taxation was not invalid. The reason assigned for this ruling was that, where the same method was applied without discrimination throughout the state to the valuation of all property belonging to a particular class, the requirement of the Constitution referred to is complied with. The act of 1902 divides mines producing gold and

of mining properties is to fix their value on the basis of the profits realized in operating them, which, from their nature, represents their true and actual value. Mines are valuable only by extracting their values. Each ton of ore extracted reduces by that much the value of the property from which it is taken. Sooner or later the ore bodies in a property being operated will be exhausted, and what then remains is generally worthless.

ducing and nonproducing. The producing | cess of a specified sum as the criterion to class are those the gross proceeds of which govern assessors in determining the value exceed $5,000 per annum. The act also provides that the person owning or operating a producing mine shall make out a statement and deliver it to the assessor, the purpose of which is to exhibit the gross and net proceeds per annum of such mine. From this statement the assessor is required to determine the gross and net proceeds of the mine to which it refers, and for the purposes of taxation shall value the mine at one-fourth of the gross proceeds, unless it appears that the net proceeds exceed one-fourth of the gross proceeds, in which event it shall be valued at the sum representing the net proceeds.

It is also urged that if the Legislature may fix the gross yield at $5,000 per annum, under which a mine is classed as nonproducing, it might so declare as to one yielding $500,000, or $5,000,000, or that it might declare that a producing mine should not be assessed at a sum per acre in excess of the values per acre of the lowest nonproducing mine in the same locality. The Constitution leaves the subject of assessing mines to the wisdom of the Legislature by simply requiring that it shall prescribe regulations by general law which shall secure just valuations for the purposes of taxation. If rules so prescribed are not clearly calculated to produce gross inequality and injustice in the assessment of different parcels of property belonging to the same class, the courts will not interfere. No doubt instances of injustice and hardship will sometimes result under the statute now under consideration, but this is necessarily true of all statutes providing methods for the assessment and taxation of property. Exact uniformity and mathematical accuracy in values for these purposes are absolutely impossible. No statute can be framed which would bring about these results. As was said in the State Railroad Tax Cases, 92 U. S. 575, 23 L. Ed. 663, and quoted with approval in the Henderson Case: "Perfect equality and perfect uniformi. ty of taxation, as regards individuals or corporations, or the different classes of property subject to taxation, is a dream unrealized." If it were necessary, in order to comply with the constitutional requirement regarding uniformity of taxation, that a stat

[1] Two propositions are advanced by counsel for plaintiffs in error, in support of their contention that the present revenue law relating to the assessment of mines is invalid: (1) That fixing the gross production in excess of $5,000 per annum as the basis upon which producing and nonproducing mines are classified is invidious and unreasonable; and (2) that the proviso in section 5625, Revised Statutes, limiting the assessment of nonproducers to a sum not exceeding the sum at which the lowest producing mine in the same locality is assessed per acre, is unconstitutional. Generally speaking, mines producing the precious metals are only valuable for the ores they contain. Such value, intrinsically, is limited to the net value of such ores; that is, what is realized from their sale and reduction | after the expense of extracting, reducing, and shipping them to market is deducted. It is a well-known fact that in the great majority of mines large sums of money must be expended in opening up the ore bodies and equipping them for successful operation. We must assume that the General Assembly was familiar with these conditions, and understood as a fact that in most instances a mine the gross proceeds of which did not exceed $5,000 per annum did not leave any net profits to the owner or operator. True, in some instances, as stated by counsel, a mine producing gross proceeds in a sum less than $5,000 per annum might leave the own-ute to that end must prescribe such rules as er or operator a handsome profit, and that would bring about absolute exactness, it another property producing much more than would be impossible to frame one which $5,000 within the same period would not would stand the constitutional test. We do yield any profit, and that the latter under not think the $5,000 limitation is invidious the law would be compelled to pay a tax or unreasonable, or that upholding this limwhich the former would escape. It is also itation as valid will result in requiring this true that fixing the maximum production at court to uphold some future act of the Leg$5,000 per annum is arbitrary, in a limited islature which, by reason of its provisions sense. The same could have been said about with respect to valuations of mining properthe act of 1887, which fixed the production ty for the purposes of taxation, would clearat $1,000 per annum. But any plan of as- ly be unreasonable. The purpose of fixing sessment for taxation based on production the gross proceeds in excess of a specified must be arbitrary, whether great or small, sum was to classify mining properties as but is not so, in the sense that for this rea- producing and nonproducing, and that, when son it should be regarded as invalid, as the the gross proceeds exceeded the sum specipurpose of fixing the gross proceeds in ex-fied, a fixed proportion thereof, or the actual

net proceeds if they exceeded such propor-acre than is assessed per acre against the tion, would fix the value of such property lowest producing mine situated in the same for the purposes of taxation. Should our locality. Numerous reasons are urged by Legislature at some future time, place the counsel for plaintiffs in error against the gross output at such a large sum, and still | validity of this section, all of which may be adhere to the present method of assessing determined by considering two questions: mining properties, that such output would appear to be manifestly unreasonable and unjust as a guide from which to determine whether or not a property was producing or nonproducing, a way would be found to correct it.