The silver messenger. (Challis, Idaho) 1890-1912, 1900-12-25
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Boise Statesman.

Mining property, title to which
has passed from the government
to private parties, is subject to
taxation in this state exactly like
any other.form of property. This
point has just been decided by
the Supreme Court in the case of
o. J. Salisbury, respondent, VS..
Carl Lane, Assessor, appellant.
Under this decision a mining
claim is no longer a mining claim
within the meaning Of the stat
ute of exemptions after it has
been passed to patent but becom
es property. The decision is of
far-reaching Importance, affect
ing most if not all the valuable
mining properties of this state.
The aggregate value of these
properties is very large and if it
is added to the assessment roll of
the state it will make material
increase in the states assessed
valuation.
The case in which this decis-
ion has been rendered grew out
of the assessment by the Assess
or of Custer county of certain
patented mining property be-
longing to Mr.. Salisbury. The
Assessor was proceeding to sell
the property for taxes when Mr..
Salisbury paid them under pro-
test and then brought suit for re-
covery. The case was submit
ted to Judge Stockslager at
HALEY on an agreed statement of
facts and was decided against the
Assessor. An appeal was taken
to the Supreme Court where that
decision is reversed. When the
case came up to the Supreme
Court w. E. Borah was employ
ed by the county to represent it's
interests, the plaintiff being rep
resented by Johnson & johnson
of this city. Mr.. Borah briefed
the case and argued it on the
theory that the term mining
claims covers only possessory
claims, title to which has not
passed from the government.
The decision of the court is by
Chief Justice Huston, concurred
in by Justice Quarles and dis
sented from by Justice Sullivan.
The majority opinion is as fol-
lows
Huston, G. j.
This is a submission of a con-
troversy without action. 1t is
unnecessary to set forth the en-
tire stipulation of facts, as shown
by the transcript. The question
submitted to the court upon this
agreed case is as follows: Were
mining claims for which United
States patents had been issued,
exempt from taxation in 1898
when the mining claims herein
before mentioned were assessor
This submission involves simp-
ly the construction of sub-divis-
ion z of Section 1401 r. S. Said
section provides that 1.-The fol
lowing property is exempt from
taxation, *** Seventh, mining
claims, but machinery, property
and improvements upon or APP
purtenant to mining claims shall
not be SO exempt" The tenth
subdivision of said section in
cludes "Possessory rights tC
public lands"
1t is not, as we consider it, nee,
essary to enter into pathological
discussion of the origin, or gen
eral meaning of the term min
ing claim" What does the tern
mean as used in the statute under
consideration
The organic act of the territory
of Idaho contains provision
similar, if not exact with that o.
most of the territories. Section
1851 r. S. U. S. provides 9Th,
Legislative power of every ter
ritory shall extend to all right
full subjects of legislation, notin
consistent with the constitution
and laws of the United States
But no law shall be passed in
terferring with the primary dis
posal of the soil; no tex shall b,
imposed upon the property 0
the United States; nor shall tn
lands or other property of non
residents be taxed higher thar
the lands or other property o
residents"
Primarily the title to all land
in this country is in the govern
ment, and until the government
has parted with the title it re
mains "the property of tn
United States" and as such is nc
subject to taxation, and it was i
recognition of this law that tn