82 SD 202 - Homestake Mining Co. v. Gommer

DUNN, Circuit Judge

¶1(dissenting).

¶2I must respectfully dissent. The majority opinion omits one essential fact that was stipulated to and which is of the utmost importance in this case. The Wyoming tax on the stockpile in question was assessed and paid for the year 1963.1 Whether the ore was mined in 1962 or in 1952 is of no consequence under the statute. SDC 1960 Supp. 57.0328 provides that where another state has lawfully listed and assessed a tax for the current year on the same identical property, it shall not be further assessed in this state.

¶3There is no question of tax situs here. Naturally the ore had tax situs in Fall River County and was subject to tax, unless it was exempt by the above mentioned statute. Further, the fact that South Dakota had tax situs does not dictate the tax situs for the State of Wyoming. Under its law, this ore was legally assessed as personal property for the year 1963.2 I do not feel that this Court has the power or the jurisdiction to change that stipulated fact, or to declare the Wyoming tax an "unlawful assessing". The stockpile of uranium, having already been legally assessed and taxed in Wyoming in 1963, should not have been assessed further in South Dakota during that same year.

¶4. Stipulation of fact number VUE filed October 31, 1964, which reads:

“That the said stockpile of uranium ore was duly listed by the appellant for tax assessment in 1963, under the laws of the State of Wyoming, and that the tax levied thereon was paid in full. (See attached Exhibits).”

¶5. Miller v. Buck Creek Oil Co., 38 Wyo. 505, 269 P. 43, 73 A.B.R. 821; Board of Com’rs. of Sweetwater County, Wyo. v. Bernadin, 10 Cir., 74 F.2d 809.