designated lots, together with a convenient space of land around the same.22 A description substantially similar in the lien was held sufficient; though the decree should properly define the extent of land to be included in the lien.23 The following additional points have been decided in Nevada: (1) Mechanics' liens are assignable and may be enforced in the name of the assignee, by an assignment of the paper called the mechanics' lien, which being an evidence of indebtedness, is an assignment of the debt as well as the lien; (2) that the words "for value and in consideration of one dollar in hand paid by Wm. Skyrme, the receipt whereof is hereby acknowledged, I do sell, assign, transfer and set over to said Wm. Skyrme the within lien and all my rights thereunder," were broad enough to include the debt; (3) that by the repeal of the law of 1861,24 by the act of 1871,25 liens which attached under the earlier statute or the right to enforce them were not lost, as the new law contained all the substantial provisions of the old; (4) there could be no joint liens without joint interest; (5) that the acceptance and transfer of a note was no abandonment of the lien; (6) that the notice of lien was sufficient where it recited that it was to secure the performance of a contract to pay the money specified in a certain note, given in settlement according to agreement for labor performed, as a miner in extracting ore and working in a certain designated mine, for a specified time, although it would have been better to state accurately the character of work and by whom and for whom done.26 It was also decided under the Nevada act of 1861,27 that the object of the statute was to have a formal suit to enforce the lien and by a publication of notice secure the appearance of lien claimants other than plaintiff, and so dispose of the entire matter of liens against the property in one proceeding; but that the failure of plaintiff in the action to publish notice of his suit to foreclose would not deprive an intervening lien claimant of his right to have his claim adjudicated, nor would a dismissal by plaintiff cut off the rights of intervenors, after appearance by defendant,28 recorders are authorized under the law of that state to administer the oath and certify to the verification required under the mechanics' lien law.29 A prior judgment against the agent of owners is no defense to a suit to foreclose the lien.30 It might be proper to add, in connection with the subject of liens, that lens for taxes on ore will lie against the possessory right to the mine, and it may be sold in satisfaction.31 1 Rev. Stat. U. S., § 2332, ante, p. 21. 2 Capron vs. Strout, 11 Nev. 304. 3 Bradbury vs. Cronise, 46 Cal. 287. 4 In re Hope M. Co., 1 Sawyer, 710. 5 Ellison vs. Jackson W. Co., 12 Cal. 543. 6 Head vs. Fordyce, 17 Cal. 149. 7 Duryea vs. Burt, 28 Cal. 569. 8 Smallhouse vs. Kentucky, &c. Co., 2 Mont. 443. 9 Isaacs vs. McAndrews, 1 Mont. 437. 10 Davis vs. Alvord, 94 U. S. 545 (reversing Alvord vs. Hendrie, 2 Mont. 115). 11 Skyrme vs. Occidental, &c. Co., 8 Nev. 219; Capron vs. Strout, 11 Nev. 304. 12 Davis vs. Alvord, 94 U. S. 545. 13 Preston vs. Sonora Lodge, 39 Cal. 116. 14 Capron vs. Strout, 11 Nev. 304. 15 Hunter vs. Savage, &c. Co., 4 Nev. 153. 16 Gordon vs. South Fork, &c. Co., 1 McAll. 513. 17 Hunter vs. Savage, &c. Co., 4 Nev. 153. 18 Capron vs. Strout, 11 Nev. 304. 19 Skyrme vs. Occidental, &c. Co., 8 Nev. 219. 20 Quale vs. Moon, 48 Cal. 479. 21 Nolan vs. Lovelock, 1 Mont. 224. 22 Dickson vs. Corbett, 11 Nev. 227. 23 Tibbetts vs. Moore, 23 Cal. 208. 24 Nev. Stat. 1861, p. 35. Nev. Stat. 1871, p. 123. 26 Skyrme vs. Occidental &c. Co., 8 Nev. 219; as to the effect of repeal of old law by new (3) supra; Capron vs. Strout, 11 Nev. 304. 27 Nev. Stat. 1881, p. 36. 28 Elliott vs. Ivers, 6 Nev. 287. 29 Arrington vs. Wittenberg, 12 Nev. 99. 30 Dickson vs. Corbett, 11 Nev. 277. 31 Forbes vs. Gracey, 94 U. S. 762. § 157. Taxation.-There is no doubt of the right of states to provide for the taxation of mining, as other property where the mines belong to individuals, nor of the right of the states to tax minerals which have been removed from mines located on the public domain.1 The authority of the states, however, to tax mines located on the public domain, has been seriously questioned; but It has been generally decided that where mining property is not exempt by the local law, the possessory right of the miner may be taxed as other property. It is not a taxation of the land, but merely of the proprietary right of the individual to possess and enjoy it.2 I know of no decision of this question by the Supreme Court of the United States; though that court has decided that the possessory right was subject to a lien for taxes on the product of the mine.3 Most, if not all the states of the mining region, have by their constitutions exempted mines from taxation.4 It was held in California and Nevada no violation of the organic acts or the acts admitting those territories into the Union, inasmuch as the exemption contained therein was for the protection of the general government, and not of the individual.5 In assessing taxes on the proceeds of mines the jurisdiction of the state (of Nevada), attaches while the tangible property is within the state; but if the right or interest in the property is a chose in action, the state has no jurisdiction over either the person or right, for the purpose of taxation.6 The removal of the taxable property beyond the jurisdiction before the amount of tax is specified or the mode of collection established, does not release the owner from liability for the tax. The provision in the Nevada constitution for the taxation of the proceeds of mines, contemplates the taxation of the entire proceeds and not a fractional part thereof. But there was nothing in the constitution, or in subsequent sections of the statute,9 providing for equality of taxation, or uniformity of manner in enforcing collection, which is contrary to the provision requiring quarterly assessments and payments.10 Flumes have been held subject to taxation, though necessary to give value to a claim which was exempt by state law. Where mining claims are exempt from taxation, the exemption cannot be avoided by levying a tax on the money invested in them, under the provisions of a statute taxing “all capital loaned, invested, or employed in any trade, commerce, or business whatsoever." The true basis of valuation in taxing the possessory right to mining claims, is the amount which can be realized by a sale of the right.12 Where the statute 13 provided "that an additional exemption of fifteen dollars per ton, may be allowed on all ores worked by Freiburg or dry process," it was held not to authorize an exemption of fifteen dollars per ton on all ores so worked, in addition to the actual cost of working them, but only when such actual cost exceeded sixty per cent. of the gross yield. The object of the statute was to tax the gross yield less the actual cost, provided the actual cost did not exceed sixty per cent. in case of ores worked by wet process, with an additional fifteen dollars per ton in case of ores worked by dry process.14 1 Forbes vs. Gracey, 94 U. S. 762; City of Virginia vs. Chollar Potosi M. Co., 2 Nev. 86; State vs. Eastabrook, 3 Nev. 173; State vs. Kruttschnitt, 4 Nev. 178; State vs. Manhattan, &c. Co., id. 319. 2 State vs. Moore, 12 Cal. 56; Hale & Norcross, &c. Co. vs. Story founty, 1 Nev. 104; People vs. Taylor, 1 Nev. 109; People vs. Black Diamond, &c. Co., 37 Cal. 54; People vs. Shearer, 30 Cal. 645. 3 Forbes vs. Gracey, 94 U. S. 762. 4 Constitution Nev., Art. X; Constitution Col., Art. X., § 3. 5 People vs. Black Diamond, &c. Co., 37 Cal. 54; People vs. Taylor, 1 Nev. 109. 6 State vs. Earl, 1 Nev. 394; State vs. Eastabrook, 3 Nev. 173; State vs. Kruttschnitt, 4 Nev. 178. 7 City of Virginia vs. Chollar Potosi M. Co., supra; State vs. Eastabrook; State vs. Kruttschnitt, supra. 8 State vs. Eastabrook, supra; Little Pittsburgh, &c. Co. vs. Stanley, 2 Col. Law Rep. 81. [The latter case was one rising under the laws of Colorado, and was decided by Judge HELM of the district court on demurrer to an answer in an injunction proceeding to restrain the collection of taxes. In an able opinion the learned judge decided the following points: (1) That the net proceeds of mines were taxable (citing Art. 10, § 3, Const. and Gen. Laws, § 2244). (2) That it was not within the power of the legislature to exempt such property from taxation (citing Const, Art. 10, § 6). (3) That the language of the constitution-"All taxes shall be uniform * * * * and shall be levied and collected under general laws, which shall prescribe such regulations as shall secure a just valuation for taxation. * * * Provided that mines and mining claims bearing gold, silver and other precious metals (except the net proceeds and the surface improvements thereof) shall be exempt from taxation," clearly indicated that taxes on this property should be levied and collected under general laws, hence the constitution was not self-enforcing. (4) That the only general law for taxing personal property, provided that all personal property should be listed in the county "where it shall be on the first day of May of the then current year" (citing Gen. Laws, § 2248). (5) That this section was manifestly inapplicable to the taxation of the net proceeds of mines, if not unconstitutional, for the reason that it did not provide for taxation of the entire net proceeds of mines. (6) That the statute providing for the assessment of the average value of stocks of merchandise would not apply. (7) That the legislature had provided no machinery for the assessment and levy of taxes on the net proceeds of mines, and hence, such property was not taxable in the present state of the revenue law.] 9 Nev. Stat. 1865, p. 271; Nev. Stat. 1871, § 10, p. 87. 10 State vs. Kruttschnitt, supra; State vs. Eureka, &c. Co., 8 Nov. 15; State vs. Manhattan, &c. Co., supra. 11 Hart vs. Plum, 14 Cal. 148. |