estimate of ore in sight as of April 10th is 5,475,000 tons. This we maintain is all the ore that can be rightfully charged to the Newport mine for taxation purposes. To our figure Mr. Finlay has added 3,600,000 tons above the 2,140-foot level, on the assumption that the ore area on this level will be the same as that on the 1,740-foot level. In addition to this amount, he has added an additional 7,000,000 tons for possible ore below our 2,140-foot level. We are willing to admit that if the assumptions of Mr. Finlay are correct, and we will be pleased if such is the case, his estimate is within reason. We do not, however, admit that Mr. Finlay, or any other person, has the right to assume for taxation purposes any ore over and above that which is actually developed. In submitting our estimate at the Newport, the same as as at the Anvil, we feel that we have made all the assumptions that are either necessary or required in submitting the figures we have."

In the course of his statement, he was asked by a tax commissioner the question, "How do you distinguish for assessing purposes?" and answered:

"The actual value of the mine. There is no question but that we are entitled, in determining our general policy, to take a chance on ores beyond our actual estimate, but I question whether the State has the right to definitely say that there is more ore on the property than can be actually seen. Take, for instance, his 16,000,000 tons. Suppose, for example, that the assessed valuations were placed on the properties in the exact figures as submitted by Mr. Finlay. If in the course of a few years you should determine that the geological conditions I have mentioned as a possibility were actual facts, we would have been paying taxes during that time a great deal in excess of what we should have paid, because the value was never in the mine.

"Mr. Leith: There is, of course, as you say, a very great difficulty in predicting far in advance. Conditions change very rapidly. Nobody can tell just what a dike will do. We have to go on certain expectations within reasonable limits. It is my belief, and I think very likely it is your belief, that ultimately that prop

erty will show more tonnage than Finlay estimates. That is one thing, and to estimate the tonnage on which you can base the expectancy of life is another. The question is whether, in view of these circumstances, you would make a request for a cut of 60 per cent. in Finlay's estimate, which would be a larger reduction than any company has requested?

"Mr. Brewer: I do not care to change my statement, as I have already made it, in any way, that I consider the ore value of the Newport mine at 5,475,000 tons. However, I think I am safe in saying that our company is willing to go in on any basis equitable with other companies. If there is a certain expectancy given to the other companies, and we go in on the same basis, I do not think there will be any complaint on the part of the Newport Mining Company. I still claim, however, that the developed ore, and not the probable ore, is all that should be considered."

Another representative of large mining interests, protesting against the Finlay valuation, among other things, said:

"We contend that in fixing the actual cash value of this property nobody would be willing to assume the possibility or accept the possibility that Mr. Finlay has assumed in placing the value of the property. He has assumed a much larger quantity of ore beyond the actually developed ore bodies than any purchaser would accept if he had to invest his own money, or that of any corporation he was connected with. According to our figures we had developed 9,361,500 tons. These figures were made as accurately as we could make them from our actual measurements. Finlay adds to that 8,600,000 tons, making a total of 18,000,000 expected tonnage. We think there is no warrant for that, and it is not the actual cash value of the property, but greatly in excess of it.

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"We do not believe that these ore bodies are going to cut out immediately below our present levels. We recognize the fact that in arriving at the actual cash value we have to take into consideration probable ore, but our contention is that Mr. Finlay, in estimating that additional ore, has gone beyond the limits of rea

son. We think that the maps show we have reason for making that statement, and we are thoroughly satisfied that nobody would buy the property on an estimate of that kind."

He had before this time, at the same hearing, said:

"I do not take issue with Mr. Finlay as to the method. I think he has gone at it in precisely the same manner that I would use if I were buying the property myself or doing the work for my employers, but he has not taken into consideration a number of factors that are very, very important in the purchase of a mining property. For instance, in the first place, he has based his average value of the ore on the average price obtained during the past five years. I claim that he has no right to assume that that price is going to be as high during the life of the property, which, in the case of the Chapin, he figures at 15 years, and on some other properties he has extended this time to a period of 20 years."

Proceeding, he mentions other assumptions of Mr. Finlay, and other factors, as the increasing cost of timber and other operating costs, including labor and the market for ore. Another representative of large mining interests, who appeared at the hearing before the board, said:

"I appear for the Cleveland Cliffs Iron Company. It appears to me that it was physically impossible, in the time given by the legislature for the appraisal of these mines, for the appraiser to make a thorough examination and accurate estimate of the value of each mine. The method used by Mr. Finlay in arriving at the value of the mines is one which is used by engineers generally. This method involves the use of a number of factors, any one of which, being inaccurate, will disarrange the final result. I desire this morning to call attention to some errors in Mr. Finlay's calculation, and also to pick up some factors that have entered in Mr. Finlay's calculation and show wherein they should be modified."

Mr. Finlay's report gives the exact amount of the royalties paid on the various mines. The highest

royalty paid in any case, with the exception of one small mine, was 572 cents a ton, the range of royalties being from 5 cents to 572 cents a ton. In the case of the Newport mine, where the royalty is arranged upon a sliding scale, depending upon the price of ore, the average is 29 cents and a fraction.

An expert accountant, produced at the trial, testified that, assuming that the board in fixing its valuation of the Newport mine assumed the tonnage to be 11,000,000 and the annual production 800,000, the value of the ore, calculated on the royalty basis, assuming in the amortization of the royalties 7 per cent. interest, the present value of the Newport mine, at the different rates of royalty, would be as follows:

"At 35 cents it is $2,448,740; at 40 cents $2,798,560; 45 cents $3,148,380; 50 cents $3,498,200; 55 cents $3,848,020; 60 cents $4,197,840; 65 cents $4,547,660; 82 cents $5,737,048."

Amortizing at the rate of 5 per cent. interest, the present value would be:

"At 35 cents $3,454,524; 40 cents $3,959,456; 45 cents $4,454,388; 50 cents $4,949,320; 55 $5,444,252; 60 cents $5,939,184; 65 cents $6,434,116; 82 cents $8,116,885."

The Finlay report was based in part upon statements furnished by the company showing the conditions existing in April, 1911. From that date to the time of trial, May, 1913, the Newport had mined 1,500,000 tons of ore. Its report to the State tax commission shows that on December 31, 1912, the total tonnage above above the nineteenth level was 6,060,000 tons. The record shows that at the time of the trial the breast of ore in the east end of the nineteenth level was about 500 feet, at least 75 per cent. was in ore, and that the ore body gave no evidence of weakening. In 1911, the Newport mine

mined and shipped 555,853 tons of ore; in 1912, 966,435 tons; and, in the spring of 1913 had sold, to be mined and shipped during the year, 1,140,446 tons, a total for the three years of 2,662,734 tons, an average of more than 887,000 tons for each year, and of over 1,000,000 tons annually for the last two years.

OSTRANDER, J. (after stating the facts). 1. It was held in Chicago, etc., R. Co. v. Babcock, 204 U. S. 585, 27 Sup. Ct. 326, cited by plaintiff, that in an independent proceeding attacking the judgment of an assessing board it is improper to cross-examine the members in an attempt to exhibit confusion in their minds as to the method by which the result was reached. It was further held that, in a suit to declare void assessments, the court would not consider complaints as to the results reached by a State board of assessors, except those based on fraud or the adoption of a fundamentally wrong principle. It was said:

"The board was created for the purpose of using its judgment and its knowledge." "Within its jurisdiction, except, as we have said, in the case of fraud or a clearly shown adoption of wrong principles, it is the ultimate guardian of certain rights. The State has confided those rights to its protection, and has trusted to its honor and capacity as it confides the protection of other social relations to the courts of law. Somewhere there must be an end."

The conclusions and the language here referred to may be adopted by this court in this case. Appellant says:

"We do not claim that Mr. Shields was limited to any particular process of reasoning in arriving at the valuation of the land, or that there was any legal objection to making any reasonable calculation of the probable profits of the business of mining the ore to aid his judgment, in arriving at the value of the mine. What we object to is the adoption of any calculation