Year: 1859

otute " C0tJOTR1d as James III. MO0Te.-
Defendant is the owner of a certain mining
claim, for which he paid the sum of twenty
thousand dollars, and upon which, since the
purchase, he has expended the sum of five
hundred dollars, in opening tunnel.


These sums were assessed against him. as
money invested in the business Of mining
lhe object OF this action is to test the legality
OF this assessment, and the questions presen-
ted are: lst Whether, under the Constitu-
ton, 1T is in the power of the Legislature to
tax mining claims; and I'd. Whether money
invested in the purchase and opening of such
claims is within the provisions of that por
tion of the Revenue Act which provides for
the levy OF a tax on "all capital loaned, in.
vested or employed in any trade commerce
or business whatsoever"


Upon the first of these propositions wc on
tertaln no doubt The only objection to the
power of the Legislature to impose such a tax
arises from the fact that the mines are the
property of the Government, and are exemnt
from taxation under the Act admitting Cali.
| fornia into the Union. This fact, however. il
admitted, does, in our view, initiate against
the right to levy tax upon the interest OF
the possessor of such claim The whole course
of legislation aud judicial decisions in this
State, since its organization, has recognized a
qualified ownership of the mines in private
individuals Contracts affecting mining claims
have been constantly enforced; remedies have
been afforded to those whose possession has
been disturbed, or whose claims have been
trespassed upon by others, and the right OF
the locator to sell, hypothecate. or in anv
manner dispose of his property in mining
claim, has been upheld as well by legislative ye
enactment as by judicial decisions


In Tarter VS.. Spring Creek Companv (5
Cal, S95), the Court held that "the policy of
this State, as derived from her Legislature is
to permit settlers, in all capacities, to occupv
the public lands, and, by such occupation. to
acquire the right of undisturbed endowment
against all the world but the true owner"
In evidence of this, Acts have been passed
to protect the possession of agricultural lands
acquired by mere occupancy to license min.
ers; to provide for the recovery of mining
claims, etc, "and that an appropriation of a
portion of the public domain, or anv of its
incidents" establishes quasi private pro-
prietorship which entities the holder to be
protected in its quiet enjoyment


In the Merced Mining Company VS. Ere
mont q CALI, we held that the possessor of
mining claim 'by his appropriation ACQUIRES
a vested interest in the exclusive occupation
and enjoyment of the land as against all the
world, subject only to the right of the Gov
ernment by whose license and permission his
possession was acquired; and his right to pro.
tect the property for the time being, is as full
and perfect as if he were the tenant of the
superior proprietor for years or for life ;"and
in Mckeon VS.. Bisbee e Cal, 1917, we held
that the interest of the possessor of a mining
claim was property under the law, and sub
ject to be seized and sold under execution.


The Legislature recognized proprietary
interest in the possessor of mining claims by
authorizing their hypothecation. (See Woods
Dig, pege l0S, Art 4l6)


The term property in lands" is not confin
ed to title in fee, but is sufficiently compre-
hensive to include any usufructuary interest,
whether it be leasehold or a mere right of
possession. Several persons may have, in
the same land, property which is subject to
taxation, and it is not perceived that the fact
that the property Of the Government is ex-
empt from taxation affects the right to tax the
interest which private individuals have nc-
quired in the same property. Exemption
from taxation is a privilege OF the Govern
ment, not an incident to the property. In
the hands of the Government, the lands are
exempt, but the moment the title vests in
private individual it becomes liable to the
burthens which are imposed on other prop
erty of like character. If the acquisition of
the fee by private person subjects the prol
ertv to taxation, it follows that the acquisi-
tion of lesser estate would equally subject
such estate.


There is no force in the objection that the
value ofa mining claim, which depends upon
the amount of the precious metals it contains,
must necessarily be left to conjecture.


The universal standard of value is the a.
mount of money which can be realized by a
sale of the property, and this will opply as
well to mining claims as other lands. Sales
and hypothecations of mining Claims are of
every days occurrence, and we apprehend
their value can be ascertained with sufficient
accuracy.


Upon the second proposition it is conten-
ded that though mining claims are by the
statute expressly exempted from taxation, yet
the money expended in their purchase and
working is liable, as so much capital inv vested
in the business of mining.


This rule would be manifestly unequal, and
would in large class of cases be productive
of palpable injustice, hardship and oppression;
it would exempt the first locator Of claim
from taxation, while his vendee would be
compelled to pay a per centage upon the
purchase price, although the value of the
claim at the date of the assessment might not
be 1.-THE of the sum. The claim may weld
no return whatever may prove entirely val
ue'e for ny purpose, yet the price paid,
would, under the rule contended for. be a
permanent investment of capital" and the
party compelled to pay yearly per centage
on the amount.


Or take the case of party who, after To-
eating claim, sells moiety to another for
large sum, the interest Of each is equally
valuable and equally protected by the Gov
ernment, yet one is required to contribute to
the support of the Government in return for
the benefits afforded while the other who is
in the enjoyment Of the same benefits, con-
tributes nothing. We think consequence
so manifestly absurd unjust and oppressive,
was never intended by the Legislature.


We do not understand sum paid for the
purchase ofspecifc property to be so much
capital invested The mere purchase Of prop.
erty cah in no just sense be said to be an in
vestment of capital in the business for which
the property is adapted or might be used
The purchaser parts with all interest in the
money paid he has no longer any claim up.
on iti and if the transaction constitute an in
vestment of capital, the value of the property
and not the sum paid for it is the amount of
the capital invested" As well might the
purchaser of farm be required to pay taxes
on the price paid as SO much capital inves-
ted in the business" Of farming as the purcha-
ser ofA mining claim upon the cost of such
claim.


For the purposes oftaxation there Is no dis.
tinction between thing and its value 1t is
the value which is assessed and upon which