from taxation, the same as an individual,1 still, to exempt a corporation from taxation, it is generally required that it must carry on its specific business within the limits of the State where the exemption is provided for.2 Under the above rule it has been held that a mining corporation that manufactured and refined its products in one State, and sold and delivered the same within another State, could not claim an exemption from taxation under the laws of the latter State, even though its property would not otherwise have been subject to taxation, for the reason that its business was carried on outside the taxing State, and the property was only introduced for the purpose of sale. § 417. Priority of tax lien. Taxes are not like ordinary debts in the sense of the insolvent acts, protecting property in the hands of an assignee. The State is not poration to a State board of assessors for taxation under the corporation tax act (3 Gen. St., p. 3335) is not conclusive against the corporation." Arimex Consol. Copper Co. v. State Board of Assessors, 54 Atl. Rep. 244. (N. J. Sup., 1903.) 1 State v. Northern Belle Co., 14 M. M. R. 211. 2 "Exemption is the exception and taxation the rule." Hope Min. Co. v. Kennon, 14 M. M. R. 189. 3 People v. Horn Silver Min. Co., 7 Cent. 220; 105 N. Y. 76; 11 N. East. Rep. 155. "The statute of March 10, 1865, imposing a specific tax upon corporations and companies engaged in mining, smelting and refining ores in Michigan, which provides for the payment of a tax of one and a half cents per ton on all iron ore or mineral obtained and exported from the State before being smelted, but exempts from taxation all that is smelted within the State, is void, as an attempt in effect to impose a tax upon interstate commerce." Jackson M. Co. v. AuditorGen., 32 Mich. 488; M. M. D. 366. "A State tax upon bills of lading for the transportation of gold and silver out of the State is void, being in conflict with that clause of the Constitution of the United States prohibiting or limiting the laying of duties on exports or imports." Brumagim v. Tillinghast, 18 Cl. 266; M. M. D. 366. ♦ Stanley v. Little Pittsburg Co., 14 M. M. R. 214. 2 required to wait for judgment, but may distrain and sell property for delinquent taxes and the obligation for taxes takes precedence to all other claims against the property.1 A tax, however, does not become a lien, unless it is levied under a proper and valid assessment, but where there has been a regular levy and assessment under the statute, the tax collector can distrain the property taxed, regardless of the claims of other creditors, and contrary to the general rule of pleading, in an action to enforce a lien for taxes the State throws upon the property owner the burden of showing that the assessed taxes do not constitute a lien." But in order to make a valid sale of land for unpaid taxes the weight of authorities hold that there should be a substantial, yet strict compliance with those provisions of the statute that are intended for the protection of the delinquent proprietor, and so difficult is it to fulfill all the requirements of the law in respect to tax titles that the investigator of titles always looks with suspicion upon a title which depends upon a tax deed. But notwithstanding the dubious estimation in which a tax deed is held, if all the requirements of the law, as to the preliminary proceedings, have been complied with, the tax deed conveys a good and absolute title, and the purchaser cannot be divested of it, although he may have paid a sum altogether disproportionate to the value of the land." § 418. Remedies for illegal taxation. As a general rule, when the method for avoiding an illegal tax levy is 1 Tack v. Weirmett (Ill.), 2 West. 86. 2 L'Engle v. Florida Cent. & W. R. Co., 21 Fla. 353. 3 Brosemer v. Kelsey (Ind.), 4 West. 550. 4 Tiedeman on Real Prop., §§ 759, 760; Blackwell on Tax Titles, § 60. 5 Ante, idem. 6 Gold Hill Co. v. Caledonia Co., 14 M. M. R. 202. prescribed by statute, it is the duty of the party against whom the illegal levy is made, to follow the provisions of the statute and if he fails to pursue the remedy prescribed, he cannot afterwards assert his claim of the right to equitable relief. The writ of certiorari is frequently employed to bring before the court the proceedings touching the collection of the taxes, in order that it may properly investigate the validity of the warrant, or the legality of its issuance,2 and while there is no doubt of the authority of the court to try such proceedings, where it clearly appears that there has been an illegal taxation, there is grave doubt whether the writ can be resorted to, merely to correct a supposed error in the valuation of the property by the assessor, to whom the duty is assigned by law, and the writ would not be considered as filed for any such purpose, unless the case made in the petition clearly required it, and in no case will taxes, illegally assessed, be set aside on certiorari, unless the prosecutor was not subject to the tax. Circuit courts have jurisdiction in matters pertaining to the legality of taxes assessed within the district," and in some of the States, by special statute, the county courts have jurisdiction to determine questions as to erroneous assessments, and where no appeal is taken from their decision, their action in this regard would be final upon the merits of the cause; but justices of the peace are not invested with jurisdiction, either to enforce the State's 1 Humphreys v. Nelson (Ill.). 2 West. 75. 2 Harris Cert., § 3; Rich Hill Co. v. Board Eq., 19 Mo. App. 172. 3 Harris Cert., supra. 4 Shelley County v. Miss. & T. R. Co., 16 Lea (Tenn.), 401. 5 State v. Morris (N. J.), 2 Cent. 232. 6 Wells Jur. of Cts., § 17. * Rich Hill Coal Min. Co. v. Neptune (Mo. App.), 2 West. 151. lien for unpaid taxes or to determine the validity of an assessment.1 1 State ex rel. Gordon v. Hopkins (Mo.), 2 West. 503. "The revenue laws, authorizing boards of equalization to equalize assessments and to add to and increase the same, confer a discretion on such boards, which, however, must be exercised in good faith and not arbitrarily." Cochise County v. Copper Queen Consol. Min. Co., 71 Pac. Rep. 946. CHAPTER XXVI. ABANDONMENT OF MINING RIGHTS. SECTION 419. Nature and definition of abandonment. 421. Question of intent material. 426. Same-Tailings and water rights. 1 § 419. Nature and definition of abandonment. — Abandonment has been defined as "the relinquishment of a right, or the giving up of something to which we are entitled." Of course there is no particular difference between the abandonment of a mine and the abandonment of any species of real property or other corporeal hereditament, so far as the law is concerned, for a mine is, in reality, real property.2 The question of abandonment is of considerable importance in the Western States, where the title is withheld from the locator until performance of certain conditions, for until the transfer of the title by the government, the locator can surrender his right to the possession by abandoning the same, and many conflicts arise between the locator, who has voluntarily quit his 1 "To intentionally desert." Dodge v. Morley, 1 M. M. R. 63; Dougherty v. Creary, 30 Cal. 290; Mallett v. U. S. Co., 1 M. M. R. 17. 2 Tiedeman on R. P., § 2; MacSwinney, § 1. 8 "Where the alleged abandonment of a claim occurred subsequent to application for patent, and prior to payment and entry, the executive department would be compelled to take jurisdiction to determine the conflicting rights of the parties." Wade's Amer. Min. Law, p. 156. |