¶1(dissenting). This is an action to enjoin the collection of taxes levied in the defendant county in 1964, and to cancel assessments of the same year embracing horses and cattle owned by the plaintiff, on the ground that the property was not subject to taxation in that county. It is undisputed that the plaintiff was engaged in the horse and cattle business; that he resided on a large, completely equipped ranch near Rapid City, in Pennington county; that he owned and operated another completely equipped ranch in Pennington county about 20 miles from the line between that county and the defendant count}', where his general foreman resided, known as the “Cane Creek” ranch; that in 1904 he was assessed' in the defendant county with 250 horses “under three years and over six months old,” with 250 “horses of the age of three years and over,” with 400 cattle “under two years and over six months old,” and 1,100 cows “two years old and over”; and that in the same year he was assessed in Pennington county with certain horses and cattle under similar general descriptions.
¶2*322The decision of the circuit court contains these findings of fact: “(3) That during the year 1897 the- plaintiff -purchased of John Massingale and James Ross, then and theretofore comprising the copartnership of Massingale & Ross, a large bunch of horses, consisting of over 1,400 head. That theretofore these horses had been raised and were located in the county of Stanley in the state of South Dakota, at and near what was known as the ‘15 ranch/ and said horses were then and theretofore branded and known as the T5’ horses. That after said purchase by plaintiff he continued to keep, pasture, and rear the said- horses and their increase at and near the said ‘15 ranch’ in said Stanley county, he having at the same time purchased the said ranch and its improvements. The said T5 ranch’ consisted of a substantial house of five rooms with a good cellar, also large corrals, large barns, and sheds for ■the accommodation of horses and cattle and other live stock, which buildings were located under the ‘wall’ and on the White river. Connected with these ranch buildings were pens, known as the T5’ pens, which the said former owners of said horses used for penning said horses. These pens were located above the ‘wall’ and some seven miles from the main ranch buildings; all of said buildings and pens being in Stanley county, about 15 miles east of the Pennington county line. That since the purchase of said ranch and horses the plain-tiff has continued to keep them upon the same ranch, has put up hay at said ranch, has used the same corrals and pens for branding and otherwise caring for said horses, and has moved the said T5’ pens to another location, but still within the limits of said county of Stanley, and only a short distance from -their former location. In looking after and caring for these said horses, the plaintiff has since the purchase of them, during each year, rounded them up and driven them to- these '15 pens/ for -the purpose of branding or doing any other work in regard to said horses, even driving any of said horses that might have strayed over into Pennington county back to the T5 pens’ for the purpose of branding or otherwise caring for said horses. That during the time the said horses were owned by said Massingale & Ross taxes were paid upon them in Stanley county, *323and their situs has never since been changed. * Plaintiff has kept a foreman at said ‘15 ranch/ and the said horses have always been rounded up at. this ranch when needed for any' purpose, and have not been rounded up or cared for elsewhere than in Stanley county and at said ranch. (4) That during the year 1904 the plaintiff was the owner of and had at and near the said T5 ranch’ in Stanley county, S. D,, over 300 head of said T5’ horses under three years old and over six months and of the valuation of more than $15 per head; and had, also, at the same place, over 300 head of said T5’ horses of the age of three years old and of a valuation of more than $20 per head. That these horses were, and had been for many years prior thereto, kept and reared in Stanley county, S. D., and said horses were not assessed in any other county for said year of 1904 for the purposes of taxation. … (7) That during the years from 1898 to 1903, inclusive, the plaintiff was the owner of and kept in Stanley county at said T5 ranch’ the said T5’ horses to the number of and exceeding 1,000 head during each of said years, and which horses were during said years of a value exceeding $20 per head. That the said horses during all of said years were kept in the county of Stanley, and were 'properly and legally assessable in said county by the assessor of said county, and were not assessed in any other county of the state or in any other state for said years. That by an oversight of the assessor of said Stanley county the said horses were not listed in said county for said years, and that the same should have been assessed against the plaintiff during each of said years for the purposes of taxation in said Stanley county, at a valuation of $20,000 for each of said years.”
¶3And these conclusions of law: “That the temporary injunction granted herein should be vacated and the permanent injunction herein prayed for should be denied. That the decree herein should cancel the taxes assessed against the plaintiff on said cattle, but that the assessment for said horses be. decreed valid, and that it be decreed that said assessment and tax levy so herein modified be confirmed. That the plaintiff should be assessed on a valuation of $20,000 for each year and all of the years from 1896 to 1903, *324inclusive, and that the court in its decree herein should order and direct the county auditor of said county, and other taxing officers of said county, to assess against the plaintiff a valuation of $20,000 for said horses for each of said years upon the tax lists of said years, and that the treasurer of said county and other tax collecting officers of said county be required to- forthwith proceed to collect the same in the manner provided by law for the collection of delinquent taxes. And that defendants have judgment for their costs and disbursements herein.”
¶4As the trial court decided in favor of the plaintiff, except as to the Massingale horses, and as the defendant did not appeal, matters affecting the situs of those horses alone demand attention.
¶5So far as material to this appeal, the language of the statute relating to the situs of personal property for purposes of taxation is as follows: “Personal property, except such as is required in this chapter to be listed and assessed otherwise shall be listed and assessed in the county, town or district where the owner or agent resides; … provided, that where the owner of live stock resided in a county, town or district other than that in which such live stock ordinarily and usually ranges or feeds and where such owner has established a ranch or ranches within the county, town, or district in which such live stock ordinarily and usually ranges and feeds, at which ranch or ranches the general operations of herding and feeding such -stock is conducted and at which the herder or foreman of such live stock ordinarily has headquarters while in the discharge of his duties and at which such stock is ordinarily and usually rendezvoused, … such live stock shall be listed and assessed in such count)’', town or district in which- such ranch or ranches are situated” In prescribing these special rules for determining the situs for purposes of taxation of live stock ranging at large under the conditions existing in the western portions of this state when such rules were adopted, the Legislature, of course, intended that all live stock should be subject to- taxation somewhere, but that none of it should be subject to taxation in more than one place. The statute itself is not ambiguous, though its *325•proper application may be extremely difficult in certain cases. The same person may own more than one band of horses and more than one herd of cattle. Such bands and herds may intermingle with each other and with bands and herds belonging to other persons. Both may range in more than one taxing district. Live stock impelled by storms or other causes may wander long distances from their usual grazing grounds. Definite descriptions of individual animals in assessment rolls is practically impossible. So the Begislature wisely enacted that the situs of such property shall depend on its relation to some definite locality — its owner’s residence, or such a ranch headquarters as defined by the statute. Consequently, the same person may own animals which are subject to taxation in one county and other animals which are subject to taxation in another county. If such person resides in either county, his residence will be the situs of all his animals not related to a ranch headquarters elsewhere; residence situs being the rule, ranch situs the exception.
¶6In absence of either of the conditions specified in the proviso, plaintiffs horses were not subject to taxation, in the defendant county. One who relies on an exception must bring his case clearly within its terms. So the paramount question presented by this appeal is whether it properly appears from the record that the plaintiff established a ranch in Stanley county at which the general operations of helding and feeding the Massingale band of horses were conducted, at which the foreman of such live stock ordinarily had his headquarters, and at which such stock was ordinarily and usually rendezvoused. It is regrettable that the learned judge who tried this cause, in framing his decision, did not conform the language of his findings of fact to the precise issues involved. It will, however, be assumed that the decision should be construed as finding the facts required by the statute to fix the situs of the Massingale horses at the “15” ranch, which is in the defendant county, and the question whether such finding is sustained by the evidence will now be considered. It is undisputed that the plaintiff’s Cane Creek -ranch was an established headquarters for all of his horses and cattle ranging in the *326eastern part of Pennington and western part of Stanley county; that the Massingale horses ranged in both counties, according to one of the defendants’ witnesses about “half and half in each” ; that one Isam Brown, the plaintiff’s general foreman, had charge of plaintiff’s horses and cattle so ranging in both counties, including the Massingale band; and that Brown resided at the Cane Creek ranch from which the general operations of herding and feeding such stock was conducted and at which Brown continuously had his headquarters while in the discharge of his duties. It may be assumed, as there was evidence offered by the defendants tending to prove it, that there were suitable buildings at the “15” or Massingale ranch to render it a situs ranch if it has been so occupied and used by the plaintiff; that much, if not all, of the time, one man employed by the plaintiff lived thereat; that the Massingale horses usually were rounded up and branded at pens a few miles from the “15” ranch in Stanley county; that the Massingale horses continued to range in the same country in which they ranged when purchased by the plaintiff; and that their situs prior to such purchase was in Stanley county. But, assuming all these facts to be true, it does not follow that they were subject to taxation in that county. The mere ownership of ranch buildings situated within territory occupied by grazing horses or cattle is not in itself sufficient to determine the situs of such animals. It is undisputed that the employe who lived at the “15” ranch was under the control and direction of plaintiff’s “Cane Creek” foreman; that the range usually occupied by the Massingale horses was under -the control and supervision of the “Cane Creek” foreman; and that the general operations of herding and feeding such horses were conducted at and from the “Cane Creek” ranch. Clearly, then, the evidence was not sufficient to justify the trial court in deciding that these horses were subject to taxation in the defendant county.'
¶7The conclusion that the 1904 assessment of the Massingale horses in Stanley county may be sustained by reference to section 2066, Rev. Pol. Code, does not seem tenable to me for the reason that the facts essential to a valid assessment under that section *327are not established by the evidence, are not pleaded by the defendants, and. are not found by the trial court, while the facts alleged and found regarding the assessment are clearly inconsistent with such conclusion. It does not seem to me that this court has authority to assess any of this property in Stanley county, even if it was not assessed elsewhere in 1904, or in any other year. If any of it was assessable in Stanley county in 1904, under section 2066,. the court below might be directed to secure its assessment; but I cannot concur in the conclusion that an assessment invalid under section 2059 should be sustained by this court because the same property might have been subsequently assessed under section 2066. As the conditions were the same during all the time embraced by the record as they were in 1904, it necessarily follows that none of the plaintiff’s horses were subject to taxation in the defendant county in any previous year, and that the court below erred in attempting to assess the same therein, assuming it had authority to do so if its findings had been sustained by the evidence.
¶8Therefore, upon the record, as I understand it, I think the judgment of the trial court should be reversed, and a new trial ordered.