with whom
KEETON, Chief Justice, concurs, (dissenting).I cannot agree with the conclusion reach-' ed in this case by the majority. Without challenging the power of the legislature to tax the royalties in question, I am of the opinion the legislature did not intend to tax rents and royalties of this nature and has not done so. The determination -of the question in issue in this case involves an interpretation of three statutes, which are in substance as hereinafter set- out:
Section 63-3013 (b), subd. 7, I.C., exempts from taxation the income of residents from salaries, wages or compensation for personal services, or income from the conducting and carrying on of their professions, vocations, trades or businesses, when derived from sources outside of the State of Idaho. Nothing is said in this section about a business situs outside the state.
Section 63-3019, I.C., deals with the taxable income of non-residents and says that to the extent that a non-resident has a business situs, in the State of Idaho, certain items of his gross income shall be treated as income from sources within the state. It then names interest on bonds and notes, compensation for labor or personal services performed in the state, rents and royalties from property located in the state or from any interest in such property, and gains from sale of real property located in the state.
Section 63-3022, I.C., deals with the taxable income of a resident and says that to the extent a resident has a business situs outside the state, his taxable income shall be determined as the taxable .income of a non-resident is determined in Section 63-3019, i.c.
It appears that these three statutes, stand-' ing separate and apart, have inconsistent provisions. Section 63 — 3013(b), subd. 7, L C., exempts all income arising outside of *166the state. Section 63-3022, I.C., modifies and limits such exemptions to cases where the resident taxpayer has a business situs in the foreign state. In Barraclough v. State Tax Commission, 75 Idaho 4, 266 P.2d 371, although we were dealing with personal earnings claimed to have been earned outside the State of Idaho and not with income from real estate, we attempted to reconcile these three statutes and held that they showed a plan and purpose on the part of the legislature to treat resident taxpayers and non-resident taxpayers on an equal basis.
The situs of personal property is the residence of the owner unless otherwise fixed. The situs of real estate is fixed and is not transient. For tax purposes the situs of real estate constitutes a business situs as required by Section 63-3019, I.C. Otherwise there would be no authority for the State of Idaho to tax rents and royalties arising from real estate in this state owned by a non-resident who had not established a business situs in this state; and such rents and royalties would escape taxation.
In the case at bar the royalties derived by appellants from lands located in Wyoming are subject to tax in Wyoming. If w& likewise tax such income we have subjected it to three income taxes, to-wit, the federal government, the State of Wyoming and the State of Idaho. Such treatment is contrary to Section 63-3022, I.C., which contemplates equal treatment of a non-resident owning land in Idaho and the resident owning land outside of Idaho.
If we hold that the rents and royalties arising in Wyoming are subject to tax against the resident owners because such owners have not established a business situs in Wyoming, then we have, in effect, prohibited the State of Idaho from taxing the rents and profits from real estate owned in Idaho by non-residents unless such nonresidents come into Idaho and establish a business situs in addition to the situs of the real estate. I cannot believe that the legislature ever intended to or did as a matter of fact so limit the taxation of rents and royalties from such real estate.
While double taxation of' rents and royalties from real estate by different states is not necessarily forbidden, an intention to create double taxation should not be lightly ascribed to the legislature. I believe that my interpretation of the statutes in question is fair to both the resident and the non-resident, preserves the rights of the states to tax income arising within their state, does not result in double taxation and expresses the intention of the legislature in the enactment of the statutes involved. Such interpretation would result in a simple, workable and equitable plan for taxation of rents and royalties from real estate wherever located or whether owned by resident or non-resident. I would reverse the judgment of. the trial court.