The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1896-03-13
WON BY THE HICKEYS
An Important Tax Case Decision by
Judge Mediation.
GROUND THAT is EXEMPT
The Action Was Taken to Restrain
the County Treasurer From
Selling the Property as
Delinquent
GROUND THAT Is EXEMPT

ment and taxation of mining property
on which surface ground has been sold
for residence or town lot purposes. The
decision in effect is that where a por-
ton of a mining claim is actually used
for other than mining purposes, 1t is
taxable Independently of its use or
value as mining ground. but that where
the ground is held exclusively for min
ing purposes, whether actually used or
not, ii is assessable only as mining
ground at the rate of IS per acre. The
decision was made in the case of Ed
ward Hickey against William L. Hill,
treasurer of Silver Bow county.
By agreement of counsel, Carroll &
Leehey. who appeared for the Hickey
brothers, and Nj. l.. Wines, county at
torney, a jury was waived and the case
tried to the court. The plaintiffs are
the owners of two lots or tracts of
ground on the Lizzie lode mining claim
on the south side of East Park and de-
scribed on the assessors plats as go by
125 feet and 70 by 125 feet. and all of the
mineral right in that claim. The plain
tiffs claimed that they held these two
tracts of ground exclusively for mining
purposes, and as such should be taxed
at the price paid the United states
therefore. This claim is made under the
provisions of section 3 of article II of
the constitution or the state Oh MOh-
tana, which reads as follows:
"All mines and mining claims, both
placer and rock, in places containing or
bearing gold. silver, copper, lead, coal or
other valuable mineral deposits, after
purchase thereof from the United
States, shall be taxed at the price paid
the United States therefore. unless the
surface ground or some part thereof or
such mine or claim, is used for other
than mining purposes and has sep
arate and independent value for such
other purposes, in which case said sur
face ground or any part thereof so used
for other than mining purposes, shall
be taxed at its value for sucn other pur-
poses, as provided by law. Section 1872
of the political code literally repeats
this section of the constitution, and sec
ton 1895 of the fifth division of the COM
piled statutes of Montana in force prior
to July l and under which the assess
ment of taxes for the year 1895 was
made, is in substance the same as the
section of the constitution above
quoted.
The larger tract is occupied by
large dump and on one corner of IL Is
a house and lot. The tract was assess
ed at 1850 as town property. On the
smaller tract is a store building and
one residence and was assessed at s4,-
$780, The Hickey brothers contended
that the whole property was held for
mining purposes only. and rendered the
treasurer IA cents as the amount of
taxes due or an assessment at IS an
acre. A process was also filed with the
board of equalization, but was ignored,
and an Injunction suit was commenced
against the treasurer to restrain him
from selling the property for taxes.
The evidence at the trial yesterday
showed that the lot, 225 by 125 feet, was
used exclusively for mining purposes.
The defendants introduced testimony to
show that at the present time the 10
foot lot was used for business purposes,
but on motion of counsel for plaintiff
this was stricken out on the grounds
that only testimony relating to the use
of the ground on or about March J.,
1895, the date upon which the taxes be-
came a lien, was material. Defendants
counsel however. introduced testimony
showing that plaintiffs had received
rents on this lot as late as June. 1895.
The judge, in deciding the case, said
the matter was entirely governed by
the evidence as bearing on section 3, ar
ticle IL of the constitution, quoted
above. More evidence had been intro
duced than the necessities of the case
called for, said the court. for. under the
constitutional provision, a mining
claim, especially when patented. must
be held to be valuable and to bear and
| contain valuable minerals. Therefore
ii was unnecessary to introduce testi-
mony as to the mineral value of the
ground when the patent was In evil
dence. The statutes under which prop
erty is assessed and a tax levied pro-
vides that conditions existing on the
first Monday in March must govern.
| In considering the case, however, the
court is not bound to confine itself to
the evidence on that proposition, but
may take into consideration the char
| 0f ha nd 70 xxrlf n
IL was put, and from that determine
the character from which IL should be
assessable.
The plaintiff, said the court, has al
ways the burden of proof in such cases,
the presumption being that the proper
| ty is assessable, as of the character for
which II was assessed. and that the as
sessment was regular and in accord
ance with the law, and when a party
comes into court and seeks to enjoin
the treasurer from collecting the taxes
and secure exemption from such taxes.
ii rests with him to show that under
the law he is entitled 10 the judgment
of the court TO that effect. He must
therefore make IL appear first, that the
property in question Is mining ground.
as designated by the constitution; and,
second. that IL has not, during the time
in question, been devoted to other uses
| than for mining. or that IL has not
| ed by the provision of the constitution.
| The surface ground Of a mining claim.
without being devoted to or occupied
| for other uses than mining. might have
/ a taxable value for other purposes than
those designated by the constitution.
/ For instance. II might be plated into
/ town lots and placed on the market
\ and yet. while not actually occupied
I and used as such, IL would still be taxa
! BILE as such, because IL would have an
| Independent and separate value from
| mining ground.
| The evidence in the case before the
court shows beyond question that the
/ one tract on the mining claim. 73 by 125
/ feet in extent. has been put 10 a dis
/ tinct and separate use aside from min
ing. and according TO the plaindr :
/ own testimony. IL was sold and used
up TO June Of last year for such other
| purposes. and certainly. said the judge
F. this portion is not exempt from taxa