The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-05-12

An important opinion drawn by
County Attorney Whittemore and
concurred in by the encouragement
of the state, was yesterday handed
Assessor Lynch The opinion embodies
both the question and the answer. SO
any preliminary remarks upon the
same would be superhuous:
May II, 1896.
William ]. Lynch, Esq, County Asses
sor, Salt Lake City, Utah:
Dear Sir-Our opinion has been
asked as to the proper legal construc-
ton to be given to that part of section
of the revenue law of the state of
Utah, passed by the last legislature,
which provides =" land the
net annual proceeds Of all mines and
mining claims shall be taxed as other
personal property and also, sections
81 to Go, both inclusive of the same
revenue law, which provide a method
for the assessment of such net pro-
ceeds of mines and mining claims.
! These sections referred to are part of
! the general revenue law of the state
of Utah, approved by the governor on
April 5, 1886, and which, by the pro-
visions of the law itself (section 1866,
went into effect on the date of its
approval
This general revenue law was passed
by the last legislature in conformity
to the mandate to the constitution con-
tanned in article Is of said constitution,
and should be construed by reference
thereto and in conformity Herewith.
Such constitutional article provides,
among other things:
Section 2-All property in the state,
not exempt under the laws of the Uni
ted States, or under this constitution,
shall be taxed In proportion to its
value, to be ascertained as provided by
law
Section 3-The legislature shall pro-
vide by law uniform and equal rate
of assessment and taxation on all
property in the state, according to its
value in money, and shall prescribe by
general law such regulations as shall
secure a just valuation for taxation Of
all property.
section f. and the net
annual proceeds of all mines and
mining claims shall be taxed as pro-
vided by law
The first question that naturally pre-
sents itself as to ali of article Is of
concerning that part Of section 4 of
said article, which is above quoted. is
whether the provisions of said article
are self-executing, or whether they re-
quire subsequent legislation to make
them operative. AS to this we beg to
advise you that the law, as we I'M
derstand it. is that where an article
of a state constitution, either in terms
or by necessary implication, requires
that a legislature should enact laws
on a particular subject to carry it into
effect such provisions of a constitution
must and do lie dormant and inoper-
alive until the necessary legislation is
enacted. Said article IS of the consti-
tuition of the state of Utah, as shown
by the parts thereof above quoted,
certainly require in explicit terms that
the legislature should enact appropri-
ate laws for carrying the provisions
thereof into effect, which was done by
the state legislature in the passage of
the general revenue law. in effect on
April 5. 1896, above referred to, and,
under the rule above mentioned, said
article Is of said constitution we are
compelled to consider as imperative
and dormant until by such revenue
act it was put into effect in it's en-
tirety on April 5, 1885,
The next inquiry that naturally pre-
sents itself is what effect and con-
struction is to be given to those por-
lions of article Is of the Utah state
constitution and of the revenue law of
1896, which refer directly to the point
of your inquiry as to the valuation
and assessment by you for the pur
poses of taxation of the met annual
proceeds of all mines and mining
claims" and the method to be used by
you in ascertaining and valuing the
same.
The weight of modern authority is,
in our opinion, that the legislature may
prescribe any mode of measuring and
ascertaining the amount of a valuation
and assessment that they may see fit,
and that the fixing by them of the in
come of any year, or the gross receipts
of one year, or as in this case, the
net proceeds of any year, as the meas
ure of the valuation and the basis for
fixing the assessment does not in any
sense render such law objectionable as
being retroactive in its effect. Such
provisions are solely for the purpose of
establishing a basis for valuation and
assessments. In the case before us the
legislature has seen fit to fix the period
of one year preceding June 10, as the
period during which the net annual
proceeds of all mines and mining
claims should be ascertained, the same,
when ascertained ito be used as basis
for the valuation and assessment of
that item of personal property for the
year 1896.
We therefore beg to advise you that
the valuation and assessment to be
made by you of this item of personal
property for taxation is to be made on
the basis of the net annual proceeds of
each mine or mining claim from the 1st
day of June, 1895, to the 1st day of
June, 1896, the same to be ascertained
and fixed as provided by sections 81,
IS, 81 and 60 of such revenue act.
Very respectfully yours,
G. Q. WHITTEMORE,
County Attorney.
The attorney general after an exam
ination of the opinion, wrote the fol-
lowing:
State of Utah, Office of Attorney
General, Salt Lake City, May II, 1896.
Hon. G. O. Whittemore, County Attor-
ney, City
Dear Sir-Your official opinion of
May II, 1896, addressed to William ].
Lynch, Esq, county assessor of Salt
Lake county, Utah, in relation to the
net annual proceeds of all mines and
mining claims, etc. under our state
constitution, and the revenue law of
1896, submitted to me for my examina-
ton, it being question of great i'm
portance, both as regards the state
and county revenues, is before me.
1 beg to say that l have carefully
examined the same, and so far as my
opportunities would permit have ex-