State v. Moore

Terry, C. J., delivered the opinion of the Court—Baldwin, J., and Field, J., concurring.

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 a tunnel.

These sums were assessed against him, as money invested in the business of mining. The object of this action is to test the legality of this assessment, and the questions presented are : 1st. Whether, under the Constitution, it is in the power of the Legislature to tax mining claims; and, 2d. Whether money invested in the purchase and opening of such claims, is within the provisions of that portion of the Revenue Act which provides for the levy of a tax on “ all capital loaned, invested or employed in any trade, commerce or business whatsoever.’’

Upon the first of these propositions we entertain 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 exempt from taxation under the Act admitting California into the Union. This fact, however, if admitted, does not, in our view, militate against the right to levy a tax upon the interest of the possessor of such claim. The whole course of legislation and judicial [70]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 any manner dispose of his property in a mining claim, has been upheld, as well by legislative enactment as by judicial decisions.

In Tarter v. Spring Creek Company, 5 Cal. 395, the Court held that “ the policy of this State, as derived from her Legislature, is to permit settlers, in all capacities, to occupy the public lands, and, by such occupation, to acquire the right of undisturbed enjoyment againstj 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 miners ; to provide for the recovery of mining claims, etc., “ and that an appropriation of a portion of the public domain, or any of its incidents,” establishes a quasi private proprietorship which entitles the holder to be protected in its quiet enjoyment.