296 P. 1108 | Mont. | 1931
Lead Opinion
This is an appeal by defendant from a judgment in favor of plaintiff on a directed verdict in the sum of $1,055.93, with interest.
The record discloses that plaintiff owns certain lands in Toole county. In 1920 he leased them to Gordon Campbell for the purpose of operating for oil and gas, Campbell agreeing to deliver to plaintiff 12 1/2% of all oil produced, or to pay in cash 12 1/2% of the market value of the oil. Thereafter, and in 1922, Campbell assigned the lease to defendant. Plaintiff, in June, 1923, sold 2 1/2% of the oil and gas and during the time involved here was the owner and entitled to receive 10% of the oil, or its value. Plaintiff elected to receive his royalty in cash.
In 1927 defendant withheld from plaintiff's share of royalty in that year the sum of $1,055.93, claiming the right to do so by reason of Chapter 140, Laws of 1927, in order to pay the tax accruing in 1927, based upon the product yielded to plaintiff's royalty interest during the year 1926. The right of defendant to withhold this sum is the only question presented on the appeal.
The same question, under identical facts, was before this[1] court in the case of Byrne v. Fulton Oil Co.,
The question as to who is liable for the tax accruing in 1927 on the proceeds yielded to the royalty interest of plaintiff in 1926, under the rule announced in Homestake Exploration Corp.
v. Schoregge,
The judgment is affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN, FORD and MATTHEWS concur.
Concurrence Opinion
I agree with the conclusion reached by the majority in this opinion and that a rehearing be denied, with the understanding that it is the tax due on the 1926 royalty which is involved. Reference to our records in the case of Byrne v. Fulton OilCo.,
I am satisfied with the negative holding of the majority in answer to the question submitted, since to hold otherwise, would make the statute retroactive. Deliberations concerning our former holdings in application of Chapter 140, Laws of 1927, have prompted me to clarify my views respecting the majority opinion on rehearing in the case of Byrne v. Fulton Oil Co., held to be here controlling.