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«OFFICIAL OPINIONS OF THE ATTORNEY GENERAL - 1918 138. State Assayer and InspectorFees. The State Assayer and Inspector cannot charge less than 25 ...»

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Under the amendment to section 7444, Rev. Laws (Stats. 1917, p. 25), County Commissioners are now authorized to bind the county for the expense of extradition in misdemeanors as well as in felonies.

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HON. ROBERT F. COLE, Commissioner of Labor, Carson City, Nevada.

Dear Sir: There has been pending in your office for some time the claims of Grainger, et al., against one

claim, none of which claims were ever settled.

Your predecessor in office, Hon. W. E. Wallace, referred the matter to this office for an opinion as to whether or not

trial on a misdemeanor charge.

At the time of his inquiry such action did not seem possible for the reason that Rev. Laws, 7444, as it stood at that time, authorized County Commissioners to provide for the payment by the county of the expense of extradition when the crime was of the grade of felony.

The charge against.................. under our laws could be nothing more than a misdemeanor, and therefore it does not seem possible that this man might be extradited.

At the last session of the Legislature, however, section 7444 was reenacted, omitting the words “of the grade of felony,” and the County Commissioners are now authorized to bind the county for the expense of extradition is misdemeanors as well as felonies.

I am, therefore, of the opinion that if you desire to pursue this matter further, you may now legally apply to the Board of County Commissioners of Washoe County for the extradition of

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147. Revenue--Taxation--Bullion Tax--Federal Taxes.

No reduction from the gross proceeds of mines in order to arrive at the net proceeds for the purpose of taxation in this State may be made except those provided for by section 3687, Rev. Laws, and federal taxes are not within the deductions of such statutes and may not be deducted in arriving at the net proceeds as a basis of taxation.

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Nevada Tax Commission, Carson City, Nevada.

Gentlemen: I am in receipt of yours of January 21, together with the enclosed letter from Mr. C. B. Jenkins, Business Manager of the Nevada Consolidated Copper Company, relating to the legality of deducting federal taxes from the gross proceeds of mines in order to arrive at the net proceeds for the purpose of taxation.

Concretely, the question presented by the correspondence is: may a mining company deduct federal taxes from the gross proceeds of mines in arriving at the net proceeds, the basis of taxation?

Section 3687 of the Revised Laws provides as follows:

All proceeds of mines, including ores, tailings, borax, soda and mineral-bearing material, of whatever character, shall be assessed for purposes of taxation, for state and county purposes quarterly, in the manner following: From the gross yield returned, or value of all ores, tailings, borax, soda or mineral-bearing material of whatever character, there shall be deducted the actual cost of extracting said ores or mineral from the mine; the actual cost of extracting said ores or mineral from the mine; the actual cost of saving said tailings; the actual cost of transportation to the place of reduction or sale, and the actual cost of reduction or sale; and the remainder shall be deemed the net proceeds, and shall be assessed and taxed at the same rate, ad valorem, as other property is taxed, as provided in this Act.

The section referred to is section 75 of “An Act to provide revenue for the support of the Government of the State of Nevada and to repeal certain Acts relating thereto,” which was approved March 23, 1891.

It will be observed from the section just referred to that it is the net proceeds of mines that should be assessed and taxed; and the term net proceeds is defined as “being the gross yield or value of the ore less the actual cost of extracting; the actual cost of transportation to the place of reduction or sale; and the actual cost of reduction or sale.” It will be further observed that it is net proceeds and not net income that is to be taxed under the provisions of this section.

This section was adopted under the provisions of section 1 of article 10 of the

Constitution as it then existed, which provides:

The Legislature shall provide by law for a uniform and equal rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, real, personal and possessory, excepting mines and mining claims, the proceeds of which alone shall be taxed, and also excepting such property as may be exempted by law for municipal, educational, literary, scientific, religious or charitable purposes.

It will be observed from the original section 1 of article 10 that it was left to the Legislature to tax the proceeds of mines, and they could tax either the gross or the net in the exercise of their legislative discretion. Section 1 of article 10 was later amended and, as

amended and approved by the people at the general election of 1906, reads as follows:

The Legislature shall provide by law for a uniform and equal rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, real, personal and possessory, except mines and mining claims, when not patented, the proceeds alone of which shall be assessed and taxed, and, when patented, each patented mine shall be assessed at not less than five hundred dollars ($500) except when one hundred dollars ($100) in labor has been actually performed on such patented mine during the year, in addition to the tax upon the net proceeds; and also excepting such property as may be exempted by law for municipal, educational, literary, scientific or other charitable purposes.





It will be observed that there is some ambiguity with reference to the provisions of this section. “Mining claims when not patented, the proceeds of which shall be assessed and taxed,” seems to conflict with “On such patented mines during the year in addition to the tax upon the net proceeds.” Under the view that I take of the matter, however, this conflict is not material, for the Legislature has not attempted to differentiate between patented and unpatented mining claims, and taxes only the net proceeds in both classes of mines.

The question arises, however, as to the construction to be placed upon the words “net proceeds,” as they appear in section 1 of article 10. The Constitution does not define net proceeds, but, as a matter of construction, I am of the opinion that the term net proceeds, as used in the Constitution, is identical with that defined by section 3687, for the Legislature evidently had in mind in adopting the amending resolution the law as it existed at that time, and this is always a guide for construction. The legal presumption will be indulged in that the revisers of the Constitution used the words intelligently, with full knowledge of the statutory definition of “net proceeds” then in effect. This rule of construction is supported by abundant authority: State v. Glenn, 18 Nev. 34; State ex rel. v. Cole, 38 Nev. 215; State v. Parkinson, 5 Nev. 15-34;

O’Brien v. Trousdale, 41 Nev. 90, 167 Pac. 1007; 8 Cyc. 736, 740; 12 Corpus Juris. 706, 712.

As I have heretofore said, it is the net proceeds of mines and not the “net income” of mine owners and mining corporations that is the basis of assessment and taxation. I am of the opinion that no deductions may be made except those provided for by the statute and that federal taxes are not within the deductions provided for by the statute, and may not be deducted in arriving at the net proceeds, the basis of taxation.

Yours very truly,

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148. Nepotism--Nevada School of Industry.

There is nothing in the Nepotism Act (Stats. 1915, p. 17) which prevents the Board of Government of the Nevada School of Industry from employing the son-in-law of one of its members as a physician at the school.

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MR. W. W. BOOHER, Secretary Board of Government Nevada School of Industry, Elko, Nevada.

Dear Sir: We are in receipt of your letter of recent date, wherein you ask an opinion upon

the following question:

–  –  –

There is nothing in the Nepotism Act (Stats. 1915, p. 17) which prevents the employment mentioned, and, as there is no other statute of this State applicable at all to such matter, it is our opinion that the contemplated employment can be legally made.

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MR. H. B. BULMER, Acting Commissioner, University of Nevada, Reno, Nevada.

Dear Sir: I am in receipt of your favor of recent date, asking information as to whether vinegar manufactured as the Fleischmann Company claim in paragraph 3 of their letter, complies with our law.

After examination of the question, it appears to me that a question of fact, rather than of law, is involved.

In the report of your analysis of December 31 you find “artificial coloring matter” present.

In the letter of the Fleischmann Company, dated January 9, the writer thereof says:

The vinegar derives its color and flavor from the malt vinegar, and is quite extensively sold in the State of California where our laws concerning the manufacture of vinegar seem to be on a parallel with the laws of the State of Nevada.

No artificial coloring matter is used in this vinegar.

Our law on the subject is found in Stats. 1913, p. 318, sec. 9, which provides:

–  –  –

If you found that this vinegar contained artificial coloring matter, it is clearly prohibited from sale in this State under our law. If, however, it is not artificially colored, its sale is legal.

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150. Department of Highways--Federal Government--State Highway Fund.

The money of the State Highway Fund may be legally used in making reports to the Federal Government of military notes and economic resources of the State.

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MR. R. K. WEST, State Highway Engineer, Carson City, Nevada.

My Dear Mr. West: We wish to acknowledge receipt of your recent letter, in which you state that your department has been requested by the United States Army authorities to furnish certain military notes on all roads in Nevada, with reports of the economic resources of the State, and ask whether any part of the funds under the jurisdiction of the State Highway Department may be legally expended for such purpose.

Section 6 of the Act creating the Department of Highways (Stats. 1917, p. 310) provides that the State Highway Engineer-shall cause to be made and kept by the Department of Highways a general plan of the State, and shall collect information and compile statistics relative to the mileage, character, and condition of the highways and bridges in the different counties of the State.

It is apparent that a great portion, if not all, of the matter desired by the War Department is that covered by the above-mentioned section.

We are therefore of the opinion that the money in the State Highway Fund may be legally used for the purpose mentioned.

–  –  –

By WM. McKNIGHT, Deputy.

151. Trademarks, Imitation of--Unfair Competition.

It is illegal for any one to imitate the emblem used by another party in the same line of business, whether such emblem has been recorded or not.

–  –  –

HON. GEORGE BRODIGAN, Secretary of State, Carson City, Nevada.

Dear Sir: I am in receipt from you of a letter from the District Auto Service, Incorporated, concerning the alleged infringement by other parties of an emblem which has been in use by said District Auto Service for over twenty-one months on its autos; also a letter from C. A. Eddy, attorney-at-law of Ely, Nevada, requesting two copies of the sign or trademark which he desires to have recorded in your office under sections 4335-4337 of the Revised Laws of Nevada, said trademark to be used in connection with automobile jitney service.

The letter of the District Auto Service first referred to is a protest against the recordation by you of said proposed trademark.

In the letter of the District Auto Service it is stated that one of the emblems engraved on brass carried on the autos of said District Auto Service since April, 1916, has been forwarded to

you by express. The law of this State in the question above referred to provides:

Every person or association or union or workman or others that has adopted or shall adopt any label or trademark or form of advertisement may file the same for record in the office of the Secretary of State by leaving two copies, counterparts or facsimiles thereof, with the Secretary of State. (Rev. Laws, 4635.)

The law of “unfair competition” is defined as follows:

Unfair competition consists in the passing off and attempting to pass off upon the public the goods or business of one person as and for the goods or business of another. (38 Cyc. 756.) This is the law, whether the trademark has been recorded or not. If, therefore, upon comparison of the labels furnished by Mr. Eddy with that furnished by the District Auto Service it is apparent that the labels are so similar that the public may be deceived by reason of such similarity, it is your duty to reject the application for recordation of the letter, emblem, trademark, or advertisement.

–  –  –

152. Nevada Industrial Commission--Salaries--Governor--Veto Power.

The Governor has no power to approve or fix the compensation of any person employed by the Nevada Industrial Commission to be paid from the Accident Benefit Fund.

–  –  –

DR. DONALD MACLEAN, Chief Medical Adviser, Nevada Industrial Commission, Carson City, Nevada.

Dear Sir: We wish to acknowledge receipt of your letter of recent date, in which you ask whether or not the Governor has the power of approval and veto over the Accident Benefit Fund of the Industrial Insurance Commission.

Section 21 of the Act creating the Nevada Industrial Commission (Stats. 1913, p. 143;



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