dissenting (dissent written prior to his resignation on August 7, 1989).
I must respectfully dissent from the opinion of the majority for several reasons. The majority opinion errs, I think, when it asserts the regulation was designed to cover this type of situation when clearly, the plain reading of the regulation establishes that it does not. If we are to hold the administrative agencies of Idaho to a standard that whenever they promulgate regulations in a given area, that those regulations will be deemed by this Court to encompass areas not contemplated or addressed, then we are putting the agencies under a tremendous burden because they cannot be expected to have either the expertise or the foresight to anticipate every conceivable fact situation when they are designing a regulation.
Secondly, even if the regulation were to have covered this situation, it would be unconstitutional. The majority asserts that the Tax Commission is bound by its own regulations, and thus it is estopped to assert the constitutional issues, but I submit that is a very narrowly focused view of the issue in this case. If the Tax Commission’s regulations operate to violate the Constitution by being contrary to the constitutional requirements that the full value of property be taxed within the state, and that all property be taxed uniformly, then this Court has a duty to declare the regulation unconstitutional.
Just as the Tax Commissioner himself cannot assess taxes unequally and disproportionately, likewise, the Commission cannot accomplish unconstitutional taxation simply by promulgating a regulation.
The effect of the majority opinion is to require that the other taxpayers of Lewis County pick up and bear the tax burden that would properly be assessed against Railbox. To add insult to injury, the taxpayers of Lewis County are going to have to be specially assessed or have their taxes increased in order to raise revenue for the refund.
I would hope that a cogent petition for rehearing would be presented to this Court to provide it an opportunity to give this matter further consideration.
BISTLINE, J., concurs.