Our Constitution (article 13, § 4) reads as (51 Utah, 316) "All mines and mining claims, both placer and rock in place, containing or bearing gold, silver, copper, lead, coal or other valuable mineral deposits, after purchase thereof from the (Supreme Court of Utah. Jan. 15, 1918.) TAXATION 63—MINES “NET ANNUAL PRO-United States, shall be taxed at the price paid CEEDS. Under Const. art. 13, § 4, and Comp. Laws 1907, §§ 2566-2568, as amended by Laws 1909, c. 63, relating to taxing of net annual proceeds of mines, where ore, thrown in the dump during previous years, is shipped and reduced, the net to be taxed is the gross received less the cost of handling for the particular year for which taxed, and the mining company cannot be credited with the cost of mining it and placing it in the dump in prior years, the question not being whether the business as a whole was paying, but what was the net proceeds for that particular year, arrived at by subtracting from the gross receipts for the year the amount of expenses actually incurred during such year.1 Appeal from District Court, Juab County; Joshua Greenwood, Judge. Action by the Mammoth Mining Company against Juab County to recover taxes paid under protest. Judgment for plaintiff, and defendant appeals. Reversed and dismissed. Dan Shields, Atty. Gen., and J. H. Wolfe and O. C. Dalby, Asst. Attys. Gen., for appellant. Dey, Hoppaugh & Fabian, of Salt Lake City, for respondent. FRICK, C. J. The plaintiff, hereafter called respondent, commenced this action against the defendant, Juab county, hereafter styled appellant, to recover the sum of $1,771.77, which respondent alleged it had paid as taxes to the appellant under protest upon an assessment of alleged net proceeds derived from its mining property situate in said county for the year 1913. The complaint alleged that said taxes were imposed and collected without authority of law, and respondent sought to recover the same from the appellant pursuant to the statute authorizing the recovery of unlawful taxes paid under pro test. The appellant, while admitting that the amount as aforesaid was paid by respondent as taxes for the purposes stated, denied that the taxes were unlawfully imposed or collected, and averred that said taxes were lawful, etc. The case was tried to the court, which found that the respondent did not derive any net proceeds for the year 1913, and found as a conclusion of law that the tax in question was void, and judgment was entered in favor of the respondent for the amount aforesaid, and for costs. The appeal is from the judgment. The principal assignments of error relate to the correctness of the court's findings, conclusions of law, and judgment. The questions involved on this appeal Imust be determined from a consideration of the provisions of our Constitution and statutes relating to the assessment and taxation of the net proceeds derived from mines. ground, or some part thereof, of such mine or the United States therefor, unless the surface claim, is used for other than mining purposes, and has a separate and independent value for such other purposes; in which case said surface ground, or any part thereof, so used for other than mining purposes, shall be taxed at its value for such other purposes, as provided by law; and all the machinery used in mining, and all property and surface improvements upon or appurtenant to mines and mining claims. which have a value separate and independent of such mines or mining claims, and the net annual proceeds of all mines and mining claims, shall be taxed as provided by law." This court, in Mercur Min. Co. v. Spry, 16 Utah, 222, 52 Pac. 382, held that the foregoing provisions were not self-executing. Laws have been enacted and amended from time to time supplementing the constitutional pro visions aforesaid. Comp. Laws 1907, § 2566, as amended by chapter 63, Laws Utah 1909, in substance provides that all persons engaged in mining must at a specified time in each year make certain statements under oath to the state board of equalization showing both the gross and the net yield from their mines for the preceding year. Section 2567 reads as follows: "The statement mentioned in the preceding section must contain a true and correct account in extracting the ore or mineral from the of the actual expenditures of money and labor mine, transporting the same to the mill or reduction works, and the reduction of the ore and the conversion of the same into money, or its equivalent, during the year.” Section 2568 provides: "In making the statement of the expenditures mentioned in the preceding section there must be allowed all money expended for necessary labor, machinery, and supplies needed and used in the mining operations, for improvements necessary in and about the workings of the mine, for reducing the ore, for the construction of mills and reduction works used and operated in connection with the mine, for transporting the ore and for extracting the metals and minerals therefrom; but the money invested in the mines or improvements during any year except the year immediately preceding such statement must not be included therein. Such expenditures do not include the salaries or any portion thereof of any person or officers not actually engaged in the working of the mine, or personally superintending the management thereof." It will be observed that in section 2567, supra, the expenses that are permitted to be deducted from the gross yield are such only as were incurred "during the year"; that is, during the year for which the proceeds are taxed. Again, in section 2568, it is expressly provided that: "The money invested in the mines or improvements during any year except the year imme For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes MAMMOTH MINING CO. v. JUAB COUNTY The statute leaves no room for construction respecting the time during which the expenses may be deducted from the gross yield of any mine in order to arrive at the net proceeds that are subject to assessment and taxation for any particular year. 79 diately preceding such statement must not be duct any costs or expenses that were incurincluded therein." the statute. red in any year except the year specified in argument that under the statute, for the purIt is too manifest to require pose of taxing the net proceeds of mines, the cost of mining, etc., incurred in any one year must be considered independently from the is, only such costs as are incurred during the cost, etc., incurred in any other year; that year in which the net proceeds are obtained may be considered. As to that the statute is clear and explicit. To illustrate: If A. during a period of four years works his mine and expends $50,000 each year in developing and blocking out ores, but does not ship or reduce any of them during that period, he has incurred an expense of $200,000. If now in the fifth year he ships ores from those he has developed and blocked out the gross reducing and shipping them for that year is yield of which is $100,000, and the cost of $50,000, his net proceeds subject to assessment and taxation for the fifth year will be $50,000. there can be no escape. From that conclusion there is Let us now apply the foregoing provisions of law to the undisputed evidence in this case. The record shows that during the period from 1876 to 1890 the respondent in operating its mine developed certain ores which were then of too low a grade to be profitably shipped and reduced. Those ores from year to year were placed in a dump, and in 1913, when cheaper processes of reducing ores had been discovered, they then could be and were shipped and reduced at a profit, as hereinafter stated. Respondent concedes that during the year 1913 it shipped ores from the dump aforesaid which yielded the sum of $62,226.61, and that the expenses of loading, handling, shipping, and reducing said ores amounted to the sum of $23,098.51, which left a net balance of $39,128.10. Respondent also conceded that it had obtained net proceeds from another source which were derived from its mining operations during the year 1913 amounting to the sum of $6,809.93, which, when added to the $39,128.10, increased the net proceeds for that year to the sum of $45,938.03. From that amount the state board of equalization, for reasons not important here, deducted the sum of $2,723.45, which left net proceeds for the year 1913, derived as aforesaid, subject to assessment and taxation, amounting to the sum of $43,214.58, which sum was accordingly assessed, and upon which the taxes imposed and collected by appellant amounted to the sum of $1,771.77, which is the amount in controversy, plus legal interest. The respondent in the court below contended, and now insists, that if it were allowed the cost of mining the low-grade ores aforesaid and placing them in the dump during the period from 1870 to 1890, such costs and expenses would more than counterbalance the apparent profit it received from the ores in 1913, and hence there would be no net proceeds to be assessed for that year. The district court permitted the respondent to make estimates and to prove the cost of mining and placing said ores in the dump during the period of time aforesaid, and found that such cost at least equaled, if it did not exceed, the sum of $43,214.58, the amount on which the assessment was made and the taxes computed for the year 1913, and as a conclusion of law found that there were no net proceeds for that year, and that therefore the tax in question was unlawful, and entered judgment accordingly. In our judgment, the district court committed error in permitting the respondent to de costs or deficits that arose in any year, exThe statute does not concern itself with cept those incurred during the year in which the net proceeds are obtained. It is not a question of whether the mine owner or operator gains net proceeds or net profits from his mine when considered as a business venture, but the only question is: Did the mine or mining properties yield net proceeds for the particular year in which they are assessed? whether the ores are obtained from the mine Nor does it make any difference or from a dump, if in fact they were at some timę taken from the mine. If, however, the view taken by the district court in this case should prevail, A. may deduct all the expenses incurred during the four years development, and there will be, as a matter of taxed until the entire proceeds derived from course, no net proceeds to be assessed and the mine exceed the expenses incurred by A. Such is neither the spirit nor the letter of either the Constitution or the statute. person operating a mine may lose money for a period of years, but, if there be one year in which the yield of the mine exceeds the deductions allowed by the statute, the excess proceeds for that year. is subject to assessment and taxation as net A view that the Constitution limits taxation to Counsel for respondent insists that, in the net proceeds derived from mines, unless there are proceeds in excess of the cost of producing them, there are no net proceeds in fact. Counsel overlook the language as well as the spirit of the Constitution. The language is that the "annual" net proceeds shall be taxed, and not the net proceeds that may be derived from the mining venture when contion provides that the same shall be "taxed sidered as a whole. Moreover, the Constituas provided by law." When, therefore, the statute is construed in the light of the constitutional provisions, there remains no reasonable doubt respecting the unsoundness of the conclusions of law and judgment of the district court. For the reasons stated, the judgment is reversed, and the cause is remanded to the district court of Juab county, with directions to dismiss the complaint at respondent's costs; appellant to recover costs in this court. unnecessarily exposed himself to the danger of The court takes judicial notice, as a force of nature, of phenomena connected with frost on objects in cold weather, particularly of the fact that such frost is caused by the difference in temperature between the object on which it appears and the surrounding atmosphere containing moisture. MCCARTY, CORFMAN, THURMAN, and 6. MASTER AND SERVANT 129 (6)-DEATHI GIDEON, JJ., concur. (51 Utah, 189) TREMELLING v. SOUTHERN PAC. CO. (No. 3092.) (Supreme Court of Utah. Dec. 4, 1917.) 1. MASTER AND SERVANT ~265(3) DEATH OF SERVANT-BURDEN TO ESTABLISH NEGLIGENCE AND PROXIMATE CAUSE. In a wife's action against a railroad under the Federal Employers' Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1916, §§ 8657-8665), for death of her husband, a brakeman, plaintiff was required to establish, by a preponderance of the evidence, that the railroad was negligent in one or more of the acts charged, and that such negligence was the proximate cause of the death. 2. NEGLIGENCE 121(5)-BURDEN TO SHOW ACCIDENT WAS PRODUCED BY CAUSE FOR Where an accident occurs through the alleged negligence of one person resulting in injury to another, and the injured person seeks to recover damages, and it is made to appear that the accident may have been occasioned by one of two or several causes, and that the person complained of is responsible only for one of them, the burden is on plaintiff to show that the accident and resulting damages were produced by the cause for which the person complained of is responsible, and, if the probabilities are equally balanced, plaintiff must fail. James v. Robertson, 39 Utah, 414, 113 Pac. 1068. 3. MASTER AND SERVANT ~276 (7) — DEATH OF SERVANT - LIABILITY OF MASTER-AB SENCE OF SHOWING THAT DEATH WAS DUE TO MASTER'S NEGLIGENCE. Where the body of plaintiff's decedent, defendant railroad's brakeman, was found beside the track, so that his death might have been caused by his falling from his moving freight train and crushing his head on the frozen ground, as well as by coming in contact with a car on a side track while standing in the stirrup of a car of his own train to look for a hot box, and there was evidence that when the body was discovered the car on the side track was covered by frost which could not be touched without leaving marks, and yet gave no indication that plaintiff's decedent had come in contact with it, judgment for plaintiff could not stand, since, where the proximate cause of the injury is left to conjecture, plaintiff must fail as matter of law. Christensen v. Railroad, 35 Utah, 137, 99 Pac. 676; Richards v. Railroad Co., 41 Utah, 99, 123 Pac. 933; Edd v. Union Pac. Coal Co., 25 Utah, 297, 71 Pac. 215. Distinguishing Lewis v. Rio Grande Western Ry. Co., 40 Utah, 483, 123 Pac. 97. OF SERVANT-PROXIMATE CAUSE. If a railroad's brakeman, standing in the stirrup of a car of his train to look for a hot box, lost his hold on the handhold, and, as he was falling, came in contact with a car negligently placed by the railroad on a side track, the contact with the car was not the proximate cause of the brakeman's death, which was the loosening of his hold and the fall. 7. APPEAL AND ERROR 1001(1)-REVIEW— VERDICT. If there is any substantial evidence in support of the verdict, the Supreme Court will not invade the province of the jury and pass on questions of fact; but where there is no substantial evidence in support, the findings or verdict must fail. Appeal from District Court, Salt Lake County; T. D. Lewis, Judge. Action by Mrs. Hattie Tremelling, administratrix, against the Southern Pacific Company. From a judgment for plaintiff, defendant appeals. Judgment reversed, and cause remanded with directions to grant a new trial. Geo. H. Smith, J. V. Lyle, and B. S. Crow, all of Salt Lake City, for appellant. Willard Hanson, of Salt Lake City, for respondent. FRICK, C. J. The plaintiff sued, on behalf of herself and infant child, to recover damages caused by the death of her husband. The action is predicated upon the federal Employers' Liability Act of April 22, 1908. The allegations of negligence, in substance, are that the defendant constructed and maintained a side track at a station near Tecoma on its line of railroad in the state of Ne vada; that defendant's negligence consisted in constructing and maintaining said side track so near to the main line of its railroad, and in placing a large freight car thereon, that the deceased, who was employed as a brakeman on one of defendant's freight trains, and while in the discharge of his duties on said train, on the 9th day of December, 1915, came in contact with said car on said side track while said train was passing the same, and was instantly killed. The defendant, while admitting the construction and maintenance of said side track and 4. DEATH 58(1) DEATH OF SERVANT placing the freight car thereon as alleged, CONTRIBUTORY NEGLIGENCE-PRESUMPTION. It will not be presumed that a railroad's nevertheless denied all acts of negligence, brakeman, killed in service in broad daylight, and averred in its answer that the deceased came to his death by reason of his own care-, he passed from his side of the engine to the lessness and negligence, and also averred engineer's side and looked back toward the that he had assumed the risk of injury, fully stating the facts in that regard. There is not the slightest dispute respecting the facts, which, briefly stated, are as follows: Tecoma is the name of a station and also the name of a small town on defendant's line of railroad in the state of Nevada. Another station on its line is called Montello, which is about 4.9 miles west of Tecoma. Tecoma station is about three-fourths of a mile west of the town of Tecoma. On the morning of the 9th day of December, 1915, the deceased was employed as head brakeman on a fast freight composed of 46 cars loaded with fruit going east. The train was in charge of Conductor D. A. Cramer and a crew consisting of two brakemen, of which the deceased was one, and a fireman and engineer. The conductor testified for the plaintiff. He, in substance, said that the train in question left Montello station at 8:53 o'clock on the morning in question, and that it passed Tecoma without stopping at about 9:15 o'clock. The other trainmen who testified for the plaintiff corroborated the conductor's statements in that regard. Before leaving Montello station the conductor "picked up" a freight car on which a new pair of wheels had been placed at Montello. Before leaving Montello the conductor spoke to the deceased. We quote from the testimony of the conductor as found in the bill of exceptions. He said: "I says, 'Kid, there is a car there with a pair of new wheels put in; kind of keep your eye on it to see that it don't run hot.'" The conductor also said that by the phrase "keep your eye on it" it was not intended and was not understood that the deceased was expected to do more than "to keep on the lookout to see that there is no hot box." The car was placed next to the tender in the rear of the engine, so that it was the head car in the train. The train passed Tecoma station without stopping, and both the rear brakeman and the deceased were at their posts on the top of the train, the deceased being near the head end of the train. The conductor and the rear brakeman testified that in passing the town of Tecoma the train was running "about twenty-five or thirty miles an hour." The rear brakeman said that in passing Tecoma station, which is about three-fourths of a mile west of the town of Tecoma, where the accident occurred, he saw the deceased at his post on the train near the front end and that he gave him the "proceed signal"; that the deceased repeated the signal to the engineer, and the latter answered it by the usual two blasts of the whistle, and the train passed on. That is the last that the rear brakeman saw of the deceased. The fire man, however, testified that at about the time just referred to by the rear brakeman 170 P.-6 rear of the train, and in doing so saw the deceased standing in the "stirrup," or the lower step (which is an iron step on which the trainmen stand in going on or off the cars), as though he were looking at a hot box. The fireman, however, says that he only got a "glimpse of him." That was the last time the deceased was seen alive. About a half or three-fourths of an hour after the train had passed the town of Tecoma one A. W. Purdy discovered the body of the deceased. The following plat will, to some extent, assist the reader to a better understanding of what follows: The track marked "M. L." is the main line on which the freight train on which the deceased was employed was running at the time. The railroad at the point in question, when looking east, runs in a northeasterly direction. The track marked "S. T." is the side track in question, and the parallelogram marked "C" on the plat represents the large steel freight car which was standing on the side track and with which, it is contended, the deceased came in contact. The point marked "X" on the plat is the point at which the witness testified there were indications, as hereinafter stated, where the deceased first struck the ground; and the point marked "B" indicates the point where the body of the deceased was found by Mr. Purdy. The head of the deceased was lying against the north rail and his feet in the direction indioated by the dotted line. It appears that the body had slid from the point "X" to the point "B", which was shown to be a distance of approximately tello station, about 4.9 miles west of Tetwenty feet, more or less. The broken line running parallel with the main line represents the distance the freight cars on the freight train projected over the rail. The distance between the center of the top of the south rail on the main line and the center of the top of the north rail on the side track, as testified to by one of plaintiff's witnesses, is 7 feet 5 inches, or 89 inches. That left a space of about 30 inches between the cars on the freight train and the car standing on the side track, perhaps a little less. It is the theory of plaintiff's counsel that the deceased was looking at the wheels on the rear end of the head car in the freight train to see whether the journals were heating; that in doing so he was standing in the "stirrup" or "lower step" of the car holding on to what is called the "grab iron" on the side of the car; that he was leaning outward from the car, and while in that position his body came in contact with the car standing on the side track, and that he was killed by the impact. Recurring now to the testimony of the witnesses, one C. F. Lee, who testified for the plaintiff, said that from a half to three quarters of an hour after the freight train had passed the town of Tecoma he was informed by Mr. Purdy that there was a man lying at the point "B" indicated on the plat; that he and Mr. Purdy immediately went to the place, and found that the man was the deceased and that he was dead; that they made an examination, and found where the deceased had first struck the ground. In that connection one of the witnesses, in answer to the question, "Just state what you found there upon the ground between the two tracks," said: "From the car door, or about the center of the car, up to this point here was a trail where the frost was all swept away and the dust swept away as clear as you could sweep it with a broom and up to the east wheel-the east wheel. Mr. Tremelling was lying with his head against the rail over here with the coat over his head." The foregoing contains the substance of the testimony of a number of witnesses. The point "X" on the plat is the point the witness referred to as the "car door," and the "trail" referred to by him is indicated by the dotted line on the plat. When the body of the deceased was first discovered, the two witnesses, Mr. Lee and Mr. Purdy, made an examination of the car standing on the side track to determine whether the deceased had come in contact therewith, and, if so, at what point. They discovered nothing, but did not make as thorough examination as was done a little later. Mr. Lee or Mr. Purdy immediately notified coma. The coroner, a Mr. Thurston, and the deputy sheriff, Mr. Zundel, arrived at Tecoma in an automobile, as they say, between 10:30 and 11 o'clock a. m. All the witnesses testified that the morning in question was a cold, frosty morning. Some characterized it as cold and frosty. The witness Lee, however, said that it was not "freezing when he was at the car," meaning when he and Purdy were first there. There had been a fog earlier in the morning, but the witnesses said the fog had disappeared when the body of the deceased was found. Indeed, the testimony is to the effect that the fog had passed away at Tecoma when the freight train passed through the town. Immediately after Mr. Thurston, the coroner, had arrived, he called several men who lived at Tecoma, as jurors, and proceeded to examine the body of the deceased and the conditions surrounding it. A number of witnesses testified, and their testimony is to the effect that the body was lying as before indicated; that the back of his skull was "crushed to a pulp" from the crown of the head down to the base of the skull; that there were some traces of blood from near the point "X," continuing along the trail to where the body was lying, at which point there was "a pool of blood"; that the deceased had a mitten on one hand, while the other mitten was lying some distance from the body; that the car on the side track was a large steel car, and that it was covered all over with frost, variously estimated to be from a little in excess of one-sixteenth to over one-eighth of an inch in thickness; that the ground was covered all over with frost; that a thorough examination was then made of the car to ascertain if the deceased had come in contact with it, and, if so, at what point. In that connection the testimony of the deputy sheriff, perhaps, covers the testimony of practically all of the witnesses. He said: "We made a thorough examination of it"-the car. "The north side and the west end were covered with frost proximately about one-eighth of an inch" in thickness. "Well, we examined the north side of the car and the west end thoroughly to see if we could find any marks where Mr. Tremelling had hit, and we found no marks whatever, either on the car or on any part of it." He said the examination "consumed the greater portion of an hour." The witness further stated that they examined the irons on the car; that the frost was on the irons, and that no "marks" were found on any part of the car. This witness also testified that tests were made as to whether, if any substance touched or came in contact with the car, it would disturb or affect the frosty coating thereon; that one could not ap |