Craig v. Taylor , 192 Ky. 36 ( 1921 )

Opinion op the Court by

Judge Quin

— Affirming.

At its 1920 session the General Assembly of this state enacted a statute imposing a so-called license tax of fifty cents per gallon upon 'every person engaged in the business of manufacturing distilled spirits, and in the business of owning and storing such spirits in bonded warehouses in the state and in removing same therefrom for any purpose. (Acts 1920, chapter 13, p. 27.)

It is made the duty of the warehouseman to collect this tax, which, however, is not payable until the liquor is removed from bond or is transferred under bond out of the state.

For a number of years prior to war time prohibition appellee was engaged in the manufacture, storage and sale of bourbon whiskey. Through the sale and delivery of warehouse receipts appellee disposed of all the liquor made by it, but in warehouses which it maintains it is holding a vast quantity of whiskey for its customers. It likewise maintains a bottling house for the purpose of bottling such of the goods in storage as may be desired by the owners.

In this action it was .sought to enjoin appellants from the collection of the tax imposed under the act aforesaid. Upon final hearing the circuit court held the act to be unconstitutional and void and perpetually enjoined the enforcement of same.

Of the many points ably brief eel by counsel we deem it necessary to consider but one, viz.: whether the tax is an occupation or a property tax. The determination of this question disposes of the appeal, It is conceded by appellants that as an ad valorem tax it cannot be sustained, and though called an annual tax it was not intended to be such. Unless, therefore, we conclude it is an occupation or excise tax the judgment below must be affirmed.

It is the contention of appellants' that the legislative purpose was to impose one occupational tax on the entire business of distilling, owning, storing and removing whislcey from bonded warehouses. All the liquor affected by the present action was distilled prior to 1920, but it is argued that this in no wise affects the validity of the act. _ If not a tax on the one occupation ‘ of distilling, owning and storing in bonded warehouses, it is nevertheless, says counsel, sustainable as a tax on the business of owning and storing. In the brief it is said that whiskey is stored for certain definite purposes, ,such for example as to permit it to age so that it might be bottled in bond; to have it cared for by some responsible person and to enable the owner to defer the payment of government taxes until the goods are withdrawn from storage.

Section 181 of the Constitution authorizes the imposition of license, occupation or excise taxes by general law.

In Greene, Auditor, v. E. H. Taylor, Jr. & Sons, 184 Ky. 739, 212 S. W. 925, this court had under consideration an act of May, 1917 (Ky. Stats., sec. 4212a), which provides that every corporation, etc., engaged in the business or occupation of manufacturing distilled spirits, and every owner or proprietor of a bonded warehouse' in this state in which .such spirits were stored should, in addition to the taxes then imposed by law, pay a license tax to the Commonwealth of two cents on every proof gallon of said spirits which is liable for tax to the Federal government. The tax imposed by this act was held not to be a property tax but a license tax, regulated as to its amount by the volume of business done by the corporation for the privilege of engaging in the business of manufacturing double stamped spirits.

In Raydure v. Board of Supervisors of Estill County, 183 Ky. 84, 209 S. W. 19, a like conclusion was reached in regard to a statute imposing- a license' tax on the occupa7 tion of engaging in the business of .producing oil. And in Strater Bros. Tob. Co. v. Commonwealth, 117 Ky. 604, 78 S. W. 871, as to a license tax on tobacco factories where the natural leaf was converted by manufacture into cigars^ cigarettes, etc.

The Supreme Court in Brown-Forman Co. v. Kentucky, 217 U. S. 563, 54 L. Ed. 883, held that a statute imposing a tax on persons engaged in rectifying whiskey was an occupation tax. But the tax imposed by the ,1920 act has none of the incidents of an occupation tax.

The right to impose a license tax on the manufacture or distillation of spirits is hot before us, since all the whiskey owned by appellants has been disposed of. We are concerned only with the question as to whether the ownership or storage of spirits in a bonded warehouse is an occupation as that term is used in our Constitution. As generally understood and defined occupation means the business in which one is employed, or perhaps it implies his trade or calling. Varied are the occupations in which one may be engaged.- As illustrated by the authorities above referred to, the designation includes such as the manufacture of tobacco, the distillation and rectifying of whiskey, etc., etc.-_ The mere right to own and hold property cannot be made the subject of excises since the levying of a tax by reason of ownership' of property is to tax the property.

This principle has been applied to the mere ownership of timber. Thompson v. Krenter, 112 Miss. 165, 72 Sou. 891; and to devoting it to a, turpentine orchard, the use for which it was most available. Thompson v. McLeon, 112 Miss. 383, 73 Sou. 193.

Greene v. Kentenia Coal Corporation, 175 Ky. 661, 194 S. W. 820, relied upon by 'appellants does not support a contrary doctrine. In that case appellee was held liable for the license taxes imposed by Ky. Stats., secs. 4189a and 4189d inclusive, where it had invested its capital in land in this state with the expectation of realizing a profit thereon. And this, notwithstanding the fact that the property was not being used for mining, timber oí agricultural purposes. But the tax was sustained on the ground the state had the right to impose the terms and conditions upon which the corporation might exercise the privileges for which it was organized or engage in business as such and that the purchase and ownership of the property was in the prosecution of its active business. Furthermore the statutes referred to applied to corporations owning property or doing business in this state.

We have no such case here. The alleged business of owning and storing of whiskey in bond is not made taxable by the act, as whiskey stored in bond is free of the tax so long as it remains in the state, and any sale or disposition o'f whiskey in storage before its removal from bond or transfer under bond out of the state relieves the owner of the obligation to pay tbe tax.

Nor is tbe tax one imposed upon the business of owning, storing or removing whiskey from bond since tbe tax would be payable if the whiskey had been removed from tbe warehouse immediately after the approval of tbe act.

Then, again, tbe tax is not upon tbe business of removing liquor owned. A single transaction does not constitute engaging in business, within tbe contemplation of tbe statute, be it that of buying and selling whiskey or in tbe business of otherwise using it, as tbe tax is payable in respect to any lot of whiskey removed. Thus we find that the tax is in reality .one upon tbe act of removal from bonded warehouses within tbe state.

Rut, as said in J. and A. Frieberg Co. v. Dawson, et al., Fed. (not yet published) :

‘ ‘ Tbe thing' really taxed is tbe act of tbe owner in taking bis property out of storage into bis own possession (absolute or qualified) for tbe purpose o'f making some one of tbe only uses of which it is capable, i. e., consumption, sale or keepmg it for future consumption or sale. . . . Tbe whole value of tbe whiskey depends upon tbe owner’s right to get it from tbe place where tbe law has compelled him to put it, and to tax tbe right is to tax tbe value.”

Tbe opinion in tbe foregoing case was that of three federal judges upon a bearing under sec. 266- of the Judicial Code, and in which tbe same act of 1920, involved here, was held to be unconstitutional. This conclusion was affirmed on appeal to tbe Supreme Court in Dawson, et al., v. The J. and A. Frieberg Co., U. S. Adv. Ops., 1920-21, p. 326.

It is .significant that of those who have bad occasion to construe this statute, two district judges, one circuit judge and tbe members of tbe Supreme Court, twelve judges in all, concur in the opinion that tbe tax is not sustainable as an occupation or excise tax and is none other than a tax on the property itself and as .such is unconstitutional.

Tbe question raised by this, appeal being one of local law, our construction of same is controlling and while tbe opinion of such eminent authority as tbe foregoing is not binding on this court, it is highly persuasive, is entitled to great weight and the reasons given 'for the conclusions readied accord exactly with the view entertained by us, considering it as an original proposition.

The character of the tax is determinable by its incidence, not its name. It cannot be made an occupation or license tax by calling it so. United States v. Emery, 237 U. S. Indeed, it is manifest the legislature considered that the tax was in fact a property tax, i. e., one upon the whiskey because in the emergency clause of the act we find:

“And whereas the liquor which they (persons embraced in the act) are handling and in which they are dealing is constantly in large quantities being removed from the bonded warehouses and disposed of without the state securing an adequate license tax thereon.” •

As a tax on the whiskey the act is conoededly invalid, and as we are satisfied it cannot be construed as anything other than a tax on property it follows that the opinion of the lower court is correct and must be and is therefore affirmed.

Whole court sitting.

Judge Sampson dissenting.