145 P. 946 | Mont. | 1915
delivered the opinion of the court.
This action was brought to obtain a decree declaring null and void an assessment and tax levied in pursuance thereof by the authorities of the defendant city, upon property belonging to plaintiff and situated within the corporate limits of the city, and perpetually enjoining the defendant Daniel Shovlin, the city treasurer, from enforcing the collection of the tax by sale of the property. The trial court granted the relief demanded. The defendants have appealed from the decree and an order denying their motion for a new trial.
Patent to the Barnard placer mining claim was issued by the United States to Anthony W. Barnard and George McCausland on November 15, 1875. The claim covers an area of 34.75 acres, lying along Missoula gulch, which extends from north to south, immediately west of the city as originally surveyed and platted. For several years after the patent was issued the mine was
Section 2 of Article XII of the Constitution specifically
The purpose had in view by the convention in formulating the provision of the Constitution was to bring into the class of taxable property mines and mining claims, and to provide a method by which the owners of them might be compelled to bear their equitable proportion of the expense of government. Theretofore this species of property had generally been exempt. (Northern Pac. Ry. Co. v. Mjelde, 48 Mont. 287, 137 Pac. 386.) Recognizing the fact that such property is not generally susceptible of profitable use unless the deposits therein are extracted and put into commercial form, and in order to encourage the work of profitable development by protecting it against exactions which might prevent this result, it was deemed that the owner of a mining claim would fully acquit himself of his obligation
While it is the rule that he who alleges that his property is exempt from taxation must sustain the burden of establishing the exemption, the provision in question not being an exemption provision, but really a revenue measure apportioning to the owners of mining claims what the convention deemed to be their just proportion of the public burden (Northern Pac. Ry. Co. v. Mjelde, supra), before the additional burden can be imposed, the taxing authorities must ascertain that the conditions authorizing its imposition in fact exist. In Hale v. Jefferson County, 39 Mont. 137, 101 Pac. 973, was involved the question whether a ditch appurtenant to a placer mining claim and used to convey water upon it to work it had a value independent of the claim, and was therefore subject to taxation upon the basis of such value. It was held that the burden was upon the taxing authorities to establish such value. The rule was recognized and ap
We shall not enter into a detailed examination of the evidence.
The judgment and order are affirmed.
Affirmed.