dissenting.
Having joined the opinion of Huntley, J., I write only in respect to an aspect of the case which apparently gives concern to only myself. In sum, I find it entirely unreasonable for the Court to apply against the Tax Commission the particular regulation, 804, when it does not fit the special extra-ordinary circumstances here present. Moreover, I.C. § 63-804 was obviously aimed at allowing the Tax Commission to devise a formula which gives proper consideration to the expectancy that railroad cars are in and out of Idaho just as they are in and out of our neighboring and also non-adjacent states.
In the instant case we are discussing a fleet of boxcars which are useable, but are not used (to borrow from the language of public utility rate making cases). Otherwise put, the cars are useable rolling stock, but which were kept out of traffic and stored on out-of-the-way tracks in northern Idaho near the town of Craigmont. On travels for our terms of court in northern Idaho, I have viewed those cars.
Idaho Code § 63-804 is clearly aimed at allowing the Tax Commission to set up a proportionate share taxation program compatible with that of other states in much the same way, so I understand, that real estate taxes on railroad rights of way are proportionately collected. The instant circumstances not being in the Tax-Commission’s contemplation when it promulgated its Regulation 804, the Tax Commission should be at liberty to fairly tax the respondent’s box cars for the full time during which they are standing idle in one or more of our Idaho counties.
In sum, I disagree “with the observation of the district court that the Tax Commission cannot be permitted to ignore its own regulation in an attempt to search out special circumstances.” Moreover, I do not see at all that the regulation has been rendered meaningless — rather it has been deemed inapplicable to the patently observable circumstances. The requirements of taxation law generally are that tax burdens be justly deposited on all taxable personal property within the state. The cars in question are such personal property. Before I can be persuaded otherwise there needs be present an evidentiary showing which, if in the record I am unable to find, informs us that the cars in question have been fully taxed, by which I mean that the neighboring and other non-adjacent states have collected each some proportionate share of personal property taxes for these cars albeit they were constantly lying idle in Idaho during the particular tax years.