*1 tаxa- mining operation purpose net-proceeds to one tion. - only is in statutory mine we find
The definition of the word -50-530, reading Mining Code, the Coal as follows: mine,’
“In act thе ‘mine’ and ‘coal used their words general sense, signify any under-ground are all intended parts .plant contribute, mining of a di- rectly- or indirectly, management, mining under one to the handling of coal.” legislative
This definition is line with our conclusions the' instant case. judgment district affirmed.
MR. CHIEF HARRISON, JUSTICE MR. JUSTICE ANGSTMAN, concur.
MR. JUSTICE BOTTOMLY: I dissent. STEWART, BERT v. STATE OF Respondent, Plaintiff MONTANA, EQUALIZATION STATE BOARD OF OF THE MONTANA, REID, STATE OF J. F. E. J. Constituting WINTERS, BYRNE W. J. Members Appel- the State Equalizatiоn, Board Defendants lants. No. 9931.
Submitted 1959. Decided June 1959. *2 Atty. Gen., George Bennett, Sp. T. Asst. Anderson, Forrest H. argued Atty. George Bennett, Helena, Gen., appellants. for T. orally. Helena, Erickson,
Leif amicus curiae. respondent, Aronow, B. Cure, Shelby, Aronow Cedor & Shelby, argued orally.
MR. CHIEF JUSTICE HARRISON: applied district for writ of
Plaintiff to the court Stewart affidavit, filed his No- mandate directed to defendants prepared that 1953 he an income tax vember stated “mistake, $771.47; that to in- showing return a tax due of failed the tax pay he to at advertence, neglect” and excusable by the return; the that he was notified the time he filed percent August that a Equalizaion Board of him, together with interest penalty against assessed had been the upon be date the which would that “in paid; be filed and the return was due to 2295.24, [1935], repealed” that R.C.M. 1947 legislation.” repealing saving was enacted “no clause voluntarily pay further stated he did not fail Plaintiff stat- penalty that the fixed the aforementioned voluntarily applies only taxpayer to the who fails ute tax; that no that he had informed believed tax; issued a war- or intеrest was due on the Board had personal property rant had of distraint and attached same; preparing plain, speedy and that he to sell had no adequate remedy irreparable at law suffer harm or and would personal permitted property. if the to sell Board were tendered and had theretofore He further contended he due, $771.47, amount did now tender the necessary that was accept said sum and Board had refused to obligated attorneys become to retаin services of and had pay them a reasonable fee. upon this issued alternative writ showing,
Based commanding accept $771.47 of mandate the Board sum paymеnt in full tax or show cause of Stewart’s income why it further com- had not done so. The alternative writ agents manded that the Board and its desist and refrain from proceedings tо collect and interest levying selling any said tax and from on or of Stewart until the further order of the court.
On December State Montana the Board quash filed motion altеrnative writ mandate based on grounds, being: several first “That the Affidavit which the Writ facts upon was issued does state which the relief sought, may granted.” relief *3 On 20,1957, plaintiff December а filed motion strike, to grounds to directed all in the quash, motion to save the first one hereinbefore set forth. granted This motion by the court and no further appearance being by Board, made the Court made and judgment its January entered ordering the of peremptory issuance a writ of mandate directed to the Board, commanding it accept to the sum of $771.47 in full payment tax; holding that the Board was without right or authority to collect an additional tax or thereon; judgment interest directing against the Mon- State of attorney’s tana for fees in $1,000, together the sum of plaintiff’s $9.55, costs in the sum of ordering that the de- agents fendants and their desist and refrain any from proceedings to сollect the additional tax or or and that attachments, executions, distraint and liens in the aid collecting of discharged. the tax be The peremptory writ February wаs issued oh 28, 1958.
The defendants filed notice appeal judgment
326 ,the in is erred 10, 1958, and
March. contend 93- application. Section suing, plaintiff’s the writ of a writ issuance seq.,..R.C.M. provides et must long applicant It held that of mandate. has . there right application the writ in legal establish a clear to sought for,. duty by person to coerced. violation of a adequate or speedy is no only writ is where The available there ex rel. v. remedy ordinary course of State Goza law. Court, Mont. District only mandate was plaintiff contends that a writ of available,
remedy by reasоn of the actions Board itself. mat- applicable this first statutes
We must examine the. (2), its 84-4924, prior to amend- ter. section subd. R.C.M. provided: ment voluntarily a
“(2) person to make return of If fails days sixty (60) pay tax if due within a one income or Act, the by provisions this required time or under the tax shall be doubled increased tax shall be doubled such a fraction of month (1) pereentum for each month or by one payment. date of originally time the tax was from the 84-4919, provides re- income tax R.C.M. Section day by tax- or before turns shall be filed on 15.th year basis. filing upon calendar payer (1), 84-4924, subd. before amendment intent any person, “If without to evade provided ‘‘ ’’ tax at time Act, fails imposed tax * * * voluntarily a return of but makes correct required thereafter, sixty (60) days pays the due within income and equal an additional amount shall be added there than an thereof,” $2 addi- (5) .less pereentum five thereof pereentum each month fraction tional one *4 unpaid. the tax remains 84-4925, provided payment section of R.C.M. installments, first half of paid the tax to the tax in two be 15, of April paid second half the tax to be before on on or pro- then thereafter, sixth before the month “If is not in full on or before paid vided installment payment, by by the board date fixed for its either this act or amount extension, in the terms of the whole accordance with an remaining payable upon of tax shall be unpaid due subject notice demand to in- board, from shall terest, penalties provided additional taxes as section 84-4924.” 84-4928, tax provided section if was days due,
not paid sixty within after the same became Board should issue a warrant directed to the sheriff command- ing levy property pay- him to and sell sufficient for the ment penalties, amount of the with the added and costs.
Bearing in provisions mind the applicable, of law refer- ring now to the facts averred plaintiff, the affidavit of tax was due on and when the return filed payment of accompany did not Now, plaintiff it. if paid sixty had within days subject the tax he would have been percent percent per of five and one month from April 15 to the date payment. by This done plaintiff. Subdivision 84-4924, supra, of section before amendment, applicable, would then be having the tax not been paid sixty days, within the tax doubled, would be such doubled percent increased one per April 15, month payment. to the date of tax being April 15, sixty day period рrovided by 84-4924, (1), subd. expire would June 1953. The application plaintiff herein states that the Board percent notified him that the 100 had against August 26, assessed him which con- forms with the law then in effect.
From the affidavit it appears Board, acting the State accordance provisions 84-4928, of section issued a war- rant of personal distraint and plain- attached tiff purpose collecting tax. From foregoing
328; following letter of law apparent the Board a writ. grounds the issuance of there exist no would conten allegations plaintiff (1) to the other
As. “mistake, in tax was due tion that failure nothing for advertence, neglect” avails and excusable a provisions to cover such situation that the law makes reason when, by pay sixty day period to cure the same it affords a pay date of up ment of a small repealed ment; sеction 84-4924 was contention, repealing saving in 1955 was enacted and that no clause 163, Laws of act, Chapter the reason that is not tenable for repeal the section. It did it. amended Further, Laws of contained no Chapter of acts in parts conflict there provisions repealing act or opinion, necessary discuss in the it was not it with. "While indirectly considered court argument this same Equal., St. 133 Mont. Hardy ex v. Bd. of rel. Toomey, Mont., (2d) 335 Pac. (2d) 1061, and State v. do rejected so here. We those casеs the cause remanded to dis- judgment is reversed and T^e quash the writ of mandate and directions to trict restraining issued. dissolve all orders CASTLES, BOTTOMLY, ADAIR and con- MR. JUSTICES cur.
MR. ANGSTMAN: JUSTICE foregoing opinion
I concur in result in the but reаched solely ground of stare decisis. agree majority opinion will I
As be noted did not with the Equal., Hardy of State ex v. St. Bd. of cases rel. 1061; (2d) Toomey, 135 Mont. 319 Pac. and State v. Mont. they upheld legislation author- 335 Pac. so far as izing doubling tax. yield application changed my opinion
I have not ground stare of those decisis. cases here