State v. Continental Oil Co. , 218 Minn. 123 ( 1944 )

¹ Reported in 15 N.W.2d 542.

² Certiorari denied by United States Supreme Court January 29, 1945. This appeal by the state from the judgments in separate proceedings against each defendant to enforce payment of personal property taxes for the years 1933 to 1940, inclusive, involves the question whether gasoline belonging to them in the tanks of a pipe-line company is subject to taxation by the state where the gasoline was transported in interstate commerce by pipe line from points outside the state to the tanks located in the state for processing, storage pending receipt of orders for its sale and distribution, and reshipment by rail to defendants' stations and customers within and without the state to fill the orders received pending the storage. In the case of the Phillips Petroleum Company, a separate question is raised as to the taxability of certain high volatile gasoline used at the tank farm in connection with blending the gasoline shipped by pipe line to prepare it for use. It has been assumed that if the first question is answered in the affirmative the decision will be determinative of this second one also.

The defendants are producers, refiners, and marketers of gasoline and other petroleum products, having their refineries in Texas and in the so-called mid-continent field, which includes parts of Oklahoma, Kansas, and Missouri. They produce six or seven basic grades of gasoline, which is transported interstate from the refineries by the Great Lakes Pipe Line Company, a stock-owned-and-controlled corporation of the defendants and certain others in the same business, through its pipe lines to a so-called tank farm located at the Minnesota Transfer in Ramsey county, this state. The tank farm is a terminal consisting of numerous large tanks with capacities ranging upwards to 82,000 barrels each, with suitable connections and equipment to receive gasoline shipped by pipe line, to process and store it in the manner herein mentioned, and to reship it by rail. At the time of trial, the tank farm had a capacity of 621,000 barrels or about 26,000,000 gallons.

At the time of delivery to the pipe line and receipt at the tank farm the gasoline is not suitable for the market. The octane count for the market must be at least 70. That of all gasoline shipped is much less than 70, most of it being in a low 60, and some of it as low as 58. Consequently, all gasoline shipped must be raised to the required octane count. This is done by adding tetraethyl lead to each shipment after determining by chemical analysis the amount to be added. In addition, such ingredients as coloring, oils, and, in the case of some defendants, solvents and high volatile gasoline are added. This processing requires several hours. Coloring is added simply by dumping a handful of coloring matter into a tank car of gasoline. The addition of the other ingredients requires some mixing and the use of special devices designed for the purpose. The tetraethyl lead is added by running the gasoline through a "spider" which mixes the lead with the gasoline as it passes through. This operation requires about 6 1/2 hours. By means of the processing, the six or seven basic grades shipped by pipe line are changed into 26 different kinds of gasoline ultimately to be sold to the trade. The pipe-line company furnishes the facilities, except for certain tanks of two of the defendants, and the labor in connection with the processing. The defendants furnish the lead, coloring, oils, solvents, and high volatile gasoline.

The shipment is made from the refineries to the tank farm under bills of lading in which the shipper is named as consignor and consignee and the destination is given as the Minnesota Transfer. The pipe-line company is an interstate common carrier. It has filed regular tariffs and charges the shippers regular tariff rates. While the pipe-line company is regarded by the interstate commerce commission as a common carrier, its processing and storage of gasoline and its property used for such purposes is not, because the commission determined:

"This extra handling of the gasoline is a manufacturing or trade service rather than a transportation service.

"Accordingly, all property owned by the carriers and used in blending gasoline has been classified in this report as owned but used for purposes other than those of a common carrier."

The gasoline of a particular shipper may be commingled with the gasoline of the same grade of other shippers. Tenders of shipments are made in such amounts and at such times as to insure an adequate supply of gasoline to meet each shipper's trade needs. When the gasoline arrives at the tank farm it is allocated to the defendants by the pipe-line company. A stock on hand to meet the trade requirements of at least 35 days is carried by each defendant.

The gasoline is reshipped by rail from the tank farm to bulk stations owned either by the defendants, their contract customers, or "spot" customers. The latter are purchasers who have had no previous contracts with the defendants. Their purchases amount to less than one percent of the gasoline handled at the tank farm. Experience has shown that about 75 percent of the gasoline is delivered to points in Minnesota and 25 percent to points in Wisconsin, North Dakota, and South Dakota. The four states comprise what defendants call the "northern area." On the average, gasoline is reshipped from the tank farm 35 days after its arrival. This period is necessitated by the processing and awaiting of orders from bulk stations and spot customers. The rail reshipment is made as a separate shipment under a regular rail bill of lading in which the shipper is named as consignor and either itself or its customer to whom shipment is made as consignee. The bill of lading contains a statement of the state of origin of the gasoline shipped under it.

The tariff rates include a charge not only for the transportation of the gasoline, but for the services rendered by the pipe-line company in processing, storing, loading rail cars, and further transportation by rail from the "terminal point [the tank farm] to ultimate destination." The processing, storage, and loading rail cars are characterized in the tariffs as rendered "in transit" — that is, while the gasoline is en route from the refineries to its ultimate destination by rail shipment from the tank farm. The railroads are not parties to the arrangement. The rate established by pipe line from the refineries to the tank farm and by rail from the tank farm to the "ultimate destination" is the same as the all-rail rate from the refineries to the place of ultimate destination. Apparently, the rail rate from the tank farm to the ultimate destination is higher than the proportional rate for the same distance on an all-rail basis. To equalize the pipe-line-rail rate from refinery to ultimate destination with that actually charged under the separate pipe-line and rail tariffs, the pipe-line company rebates to shippers the difference between the rail rate and the proportional rate for the actual rail transportation. Apparently this practice is sanctioned.

Each defendant has what is called a traffic department, which receives orders for the gasoline while it is in storage and allots it to various bulk stations and customers in approximately 200-barrel lots. After the gasoline is allotted, the pipe-line company is directed to make the proper rail shipment for which the shipper has paid the railroad in advance.

When the gasoline is delivered to the pipe line outside the state, it is destined ultimately for the consignor's trade throughout the northern area, but neither the defendants nor the pipe-line company know at that time the particular bulk stations or customers or the particular places to which the gasoline is to be reshipped from the tank farm. In fact, the only destination known at that time is the tank farm. The ultimate destination is to be determined by the traffic department of each shipper as and when orders for gasoline are received by it.

Defendants claim that the storage and processing at the tank farm are necessary to insure safe transportation of the gasoline by the pipe line, because tetraethyl lead is dangerous to human beings. The evidence is that it is a dangerous substance when handled as a separate one, but there was no evidence that it was dangerous to handle when mixed with gasoline. On the contrary, the evidence tends to show that there is no particular danger from handling gasoline containing tetraethyl lead. Defendants offered evidence to the effect that it is uncertain whether it is dangerous to handle gasoline containing tetraethyl lead and that, for that reason, the lead is added at the tank farm rather than at the refineries.

There is no substantial conflict in the evidence. The dispute revolves around the conclusions to be drawn therefrom.

Among other things, the trial court found that gasoline was stored in the terminal tanks to await orders from the shippers' own bulk plants and contract customers. As a conclusion of law, it determined that the gasoline while at the tank farm was in interstate transit and not subject to state taxation. Judgments were entered in favor of the defendants, and the state appeals.

On the appeal only the sixth finding stands unchallenged. The others are assailed as unsupported by the evidence and as being in the nature of conclusions resulting from the application of what the trial court conceived to be the governing rules of law to the undisputed facts of the case.

1. At the outset it is important to bear in mind that we are dealing with a nondiscriminatory state property tax. Minnesota v. Blasius, 290 U.S. 1, 54 S. Ct. 34, 78 L. ed. 131.

2. This being a case arising under the constitution of the United States, it is our plain duty to apply the rules laid down by the Supreme Court of the United States. Glover v. Minneapolis Bldg. Trades Council, 215 Minn. 533,10 N.W.2d 481, 147 A.L.R. 1071. In determining what its rules are and in applying them we are bound by that court's appraisal of its decisions.

It is always to be remembered that state taxes upon interstate commerce are invalid, because they conflict with the power of congress to regulate commerce among the states. Interstate commerce is under the control of congress and free from restriction by the states save as it may constitutionally ordain. In determining whether a state property tax is in conflict with the regulatory power of congress over interstate commerce, certain rules have been well established. The states may not tax property in transit in interstate commerce. This is true because the flow of goods in interstate commerce is under the control of congress and free from restrictions which it has not ordained. It is equally true that exemption from state taxation of goods transported in interstate commerce depends upon continuity of transit.

"* * * But, by reason of a break in the transit, the property may come to rest within a State and become subject to the power of the State to impose a non-discriminatory property tax. Such an exertion of state power belongs to that class of cases in which, by virtue of the nature and importance of local concerns, the State may act until Congress, if it has paramount authority over the subject, substitutes its own regulation." Minnesota v. Blasius, 290 U.S. 1, 9, 54 S. Ct. 34, 37,78 L.ed. 131, 135.

The necessary consequence is as held in numerous decisions and as said in General Oil Co. v. Crain, 209 U.S. 211, 229,28 S. Ct. 475, 482, 52 L. ed. 754, 765: "Property, therefore, at an intermediate point between the place of shipment and ultimate destination may cease to be a subject of interstate commerce" and consequently become subject to state taxation.

The question, then, is: What is continuity of transit? Plainly, it means that the transportation is proceeding and that the goods are being moved. But, in order to afford protection from state restriction upon interstate commerce and hence immunity from state taxation, the interstate movement is regarded as continuing despite temporary interruptions (1) because of the necessities of the journey, or (2) for the purpose of safety and convenience in the course of the movement. Champlain Realty Co. v. Town of Brattleboro, 260 U.S. 366, 43 S. Ct. 146, 67 L. ed. 309, 25 A.L.R. 1195 (logs held during high water to insure safety of the journey); Carson Petroleum Co. v. Vial, 279 U.S. 95,49 S. Ct. 292, 73 L. ed. 626 (oil held to accumulate a cargo and await a ship to transport it). Where, however, the goods have come to rest for causes serving the purposes of the owner of the goods, they have ceased to be the subject of interstate commerce and are subject to nondiscriminatory state taxation. Property transported in interstate commerce and ultimately destined for points beyond that at which the journey is interrupted, which has "come to rest within a State, being held there at the pleasure of the owner, for disposal or use, so that he may dispose of it either within the State, or for shipment elsewhere, as his interest dictates," is not in interstate commerce and is to be "deemed to be a part of the general mass of property within the State," and as such is subject to state taxation. Minnesota v. Blasius, 290 U.S. 1, 10, 54 S. Ct. 34,37, 78 L. ed. 131, 136, supra.

In the instant came, the gasoline was at rest in the tanks; it was not in actual transit. It cannot be held to be in transit because of a temporary interruption of the journey due to the necessities of the journey or for the purpose of convenience and safety. A concession that there might be, as defendants claim, an uncertainty whether transportation by pipe line of gasoline containing tetraethyl lead is dangerous does not establish that the processing, storage, and distribution at the tank farm were due to such fact. It appears without dispute that other ingredients were added to some of the gasoline. The ultimate destination of the gasoline was unknown at the time of shipment from the refineries and delivery at the tank farm and was to be determined, while it was being held in storage at the tank farm, by orders for shipment to bulk stations and other customers, depending on where they were located. The gasoline was held for shipment and disposition as the interests of the owners dictated. In Atlantic Coast Line R. Co. v. Standard Oil Co. 275 U.S. 257, 269, 48 S. Ct. 107, 110, 72 L. ed. 270, 275, where oil transported in ships was unloaded into tanks for ultimate delivery to unascertained customers in the interior of the state (as the gasoline here was to be delivered to unascertained bulk stations and customers in the so-called northern area), Mr. Chief Justice Taft said:

"The important controlling fact in the present controversy, and what characterizes the nature of the commerce involved, is that the plaintiff's whole plan is to arrange deliveries of all of its oil purchases on the seaboard of Florida so that they may all be there stored for convenient distribution in the state to the 123 bulk stations and to fuel oil plants in varying quantities according to the demand of the plaintiff's customers, and thence be distributed to subordinate centers and delivery stations, and this plan is being carried out daily. There is neither necessity nor purpose to send the oil through these seaboard storage stations to interior points by immediate continuity of transportation. The seaboard storage stations are the natural places for a change from interstate and foreign transportation to that which is intrastate, and there is nothing in the history of the whole transaction which makes them otherwise, either in intent or in fact. There is nothing to indicate that the destination of the oil is arranged for or fixed in the minds of the sellers beyond the primary seaboard storages of the plaintiff company at Tampa, Port Tampa, Jacksonville or the St. Johns River Terminal. Everything that is done after the oil is deposited in the storage tanks at the Tampa destinations, or at the Jacksonville destinations, is done in the distribution of the oil to serve the purposes of the plaintiff company that imported it. Neither the sellers who deliver the oil, nor the railroad company that aids the delivery of the oil to the storage tanks and tank cars at the seaboard, has anything to do with determining what the ultimate destination of the oil is, or has any interest in it, or has any duty to discharge in respect to it, except that the railroad company, after the storage in Florida has been established for the purposes of the plaintiff company, accepts the duty of transporting it in Florida to the places designated by the plaintiff company."

In numerous cases the rule has been settled that property transported in interstate commerce, which has come to rest and is held in storage either for sale or for use or for distribution, is not in transit, but is part of the mass of the property within the state and as such is subject to state taxation, although it was intended at the inception of the interstate movement to reship the property from the point where the interstate movement was interrupted to a point beyond as its ultimate destination. Southern Pac. Co. v. Gallagher, 306 U.S. 167,59 S. Ct. 389, 83 L. ed. 586; Federal C. W. Co. v. McLean,291 U.S. 17, 54 S. Ct. 267, 78 L. ed. 622; Minnesota v. Blasius,290 U.S. 1, 54 S. Ct. 34, 78 L. ed. 131; Nashville, C. St. L. Ry. Co. v. Wallace, 288 U.S. 249, 53 S. Ct. 345, 77 L. ed. 730, 87 A.L.R. 1191; Atlantic Coast Line R. Co. v. Standard Oil Co.275 U.S. 257, 48 S. Ct. 107, 72 L. ed. 270; Arkadelphia Milling Co. v. St. Louis S.W. Ry. Co. 249 U.S. 134, 39 S. Ct. 237,63 L.ed. 517; Susquehanna Coal Co. v. City of South Amboy,228 U.S. 665, 33 S. Ct. 712, 57 L. ed. 1015; Bacon v. Illinois,227 U.S. 504, 33 S. Ct. 299, 57 L. ed. 615; General Oil Co. v. Crain,209 U.S. 211, 28 S. Ct. 475, 52 L. ed. 754; American Steel Wire Co. v. Speed, 192 U.S. 500, 24 S. Ct. 365, 48 L. ed. 538, 100 A.S.R. 827; Pittsburg So. Coal Co. v. Bates, 156 U.S. 577,15 S. Ct. 415, 39 L. ed. 538; Brown v. Houston, 114 U.S. 622,5 S. Ct. 1091, 29 L. ed. 257; Missouri Pac. R. Co. v. Schnipper (D.C.) 51 F.2d 749, affirmed (7 Cir.) 56 F.2d 30; State v. Bartles Oil Co. 132 Minn. 138, 155 N.W. 1035, L.R.A. 1916D, 193; State v. Maxwell Motor Sales Corp. 142 Minn. 226,171 N.W. 566; State ex rel. Burr v. Seaboard A. L. Ry. Co.92 Fla. 61, 109 So. 656. Reference to but a few of the cited cases will show, if that is necessary, in view of the decision in the Standard Oil case (275 U.S. 257, 48 S. Ct. 107, 72 L. ed. 270), that the gasoline here in question was part of the mass of the property within the state and subject to state taxation.

In Bacon v. Illinois, 227 U.S. 504, 516, 33 S. Ct. 299, 303,57 L. ed. 615, 620, supra, the court said that the intention of the owner to reship grain after stoppage in transitu for the purpose of inspecting, weighing, grading, mixing, etc., "did not alter the fact that it [the grain] had ceased to betransported" and that the shipper "had established a localfacility in Chicago for his own benefit and while, through its employment, the grain was there at rest, there was no reason why it should not be included with his other property within the State in an assessment for taxation which was made in the usual way without discrimination." (Italics supplied.)

In Susquehanna Coal Co. v. City of South Amboy,228 U.S. 665, 668, 33 S. Ct. 712, 714, 57 L. ed. 1015, 1016,supra, it was said of the storage of coal in the yards for the purpose of keeping a supply on hand to fill anticipated orders that "there was something more than the submission to delay in transportation and the acceptance of its consequences. The situation was made a facility of business, a business conducted [as here] through agents and employee."

As pointed out in the Blasius came, 290 U.S. at p. 12,54 S. Ct. 38, 78 L. ed. 137, it was said in Champlain Realty Co. v. Town of Brattleboro, in distinguishing Bacon v. Illinois,supra: "His storing of the grain was not to facilitateinterstate shipment of the grain, or save it from the danger ofthe journey." (Italics supplied.) Nor did the processing, storage, and distribution of the gasoline at the tank farm in the instant case have that result. State v. Phillips Pipe Line Co. 339 Mo. 459, 97 S.W.2d 109 affirmed, 302 U.S. 642,58 S. Ct. 53, 82 L. ed. 499.

In General Oil Co. v. Crain, 209 U.S. 211, 28 S. Ct. 475,52 L. ed. 754, supra, oil shipped in interstate commerce to a warehouse where it was stored pending reshipment to fill orders in other states for which it was ultimately destined was held to be subject to state taxation.

In American Steel Wire Co. v. Speed, 192 U.S. 500,24 S. Ct. 365, 48 L. ed. 538, 100 A.S.R. 827, supra, the court held that property shipped in interstate movement to a transfer company, which was to take charge of it upon arrival and sort,store, and deliver it in the original packages either as generally or specifically directed by the shipper to its recognized and approved customers for whom the goods were ultimately destined, was when stored in the warehouse no longerin transit, but had reached its destination and was subject to state taxation.

In State v. Bartles Oil Co. 132 Minn. 138, 155 N.W. 1035, L.R.A. 1916D, 193, supra, we held that gasoline shipped into the state in tank cars and unloaded into tanks, where it was mixed with other gasoline, and there held for sale to customers in and outside the state, ceased to be the subject of interstate commerce and had become a part of the mass of the property within the state so as to be subject to state inspection and the fees charged therefor. We there reviewed and followed the decisions of the Supreme Court of the United States, including such cases as General Oil Co. v. Crain, 209 U.S. 211,28 S. Ct. 475, 52 L. ed. 754; Susquehanna Coal Co. v. City of South Amboy, 228 U.S. 665, 33 S. Ct. 712, 57 L. ed. 1015; Bacon v. Illinois, 227 U.S. 504, 33 S. Ct. 299, 57 L. ed. 615; and C. M. St. P. Ry. Co. v. Iowa, 233 U.S. 334, 34 S. Ct. 592,58 L. ed. 988.

The determination of the interstate commerce commission that the handling of the gasoline at the tank farm was not a transportation, but a manufacturing or trade service, and that its property used for such service was for a purpose other than as a common carrier is but a logical application of the governing rules of law to the facts of the case. Such a determination by that authority is entitled to great weight.

It is immaterial that the pipe-line company undertook, as part of the shipping arrangement, not only the transportation by itself by pipe line from the refineries to the tank farm, but also that by rail from the tank farm to the point of ultimate destination. Since the rail carriers were not parties to the arrangement, the transportation was not by through pipe-line-rail transportation. Atlantic Coast Line R. Co. v. Standard Oil Co. 275 U.S. 257, 48 S. Ct. 107, 72 L. ed. 270. But, if it were assumed that there was through pipe-line-rail transportation, it would make no difference. Where a shipment is made under a through bill of lading on a through rate with right of stoppage in transitu, stoppage of the transportation by the owner of the goods renders them subject to state taxation if the stoppage is not due to necessities of the journey or for the purposes of safety and convenience in the course of the movement, but for the owner's purposes, either to process, to sell, or to distribute the same. Arkadelphia Milling Co. v. St. Louis S.W. Ry. Co. 249 U.S. 134, 39 S. Ct. 237,63 L. ed. 517, supra (stoppage of timber at a mill for purposes of manufacturing it into lumber, storage pending receipt of orders from customers in other states, and reshipment to them under the original bill of lading upon receipt of orders); Bacon v. Illinois, 227 U.S. 504, 33 S. Ct. 299, 57 L. ed. 615, supra (withdrawal of grain shipped from southern and western states to New York at Chicago for purposes of inspecting, weighing, cleaning, clipping, drying, sacking, grading or mixing, or changing the consignee).

The fact that the gasoline was part of a flow of commerce otherwise subject to congressional regulation, which in this case was simply a regulation of the rates charged by the pipe-line company and by the railroads for transportation, does not affect the right of the state to impose nondiscriminatory property taxes. Federal C. W. Co. v. McLean, 291 U.S. 17,54 S. Ct. 267, 78 L. ed. 622 (Federal Warehousing Act,7 USCA, § 241, et seq.); Minnesota v. Blasius, 290 U.S. 1, 54 S. Ct. 34,78 L. ed. 131 (Sherman Anti-Trust Act, 15 USCA, §§ 1-7, 15 note, and Packers and Stockyards Act, 7 USCA, § 181, et seq.); Chicago Board of Trade v. Olsen, 262 U.S. 1, 43 S. Ct. 470,67 L. ed. 839 (Grain Futures Act, 7 USCA, § 1, et seq.).

The fact that here the gasoline was in the possession of the pipe-line company on the taxing day is of no importance. See, Minnesota v. Blasius, 290 U.S. 1, 54 S. Ct. 34, 78 L. ed. 131 (cattle in stockyards); Susquehanna Coal Co. v. City of South Amboy, 228 U.S. 665, 33 S. Ct. 712, 57 L. ed. 1015 (coal in piles in railroad yards).

Nor was the gasoline in transit while being processed, stored, distributed, and loaded onto cars at the tank farm because of the fact that the pipe-line company's tariffs provided for a charge for these services upon that basis. Parties cannot by contract make a transaction interstate commerce which in essentially intrastate in its nature. Mr. Justice Stone, the present Chief Justice, in Federal C. W. Co. v. McLean, 291 U.S. 17, 22, 54 S. Ct. 267, 269,78 L. ed. 622, 627, said:

"The fact that appellant's contract with the interstate rail carrier has designated appellant as the carrier's agent and appellant's warehouse as the carrier's depot cannot alter the legal consequences of what is actually done with the cotton by its owners or of their power of control over it, or of the actual course of dealing with it by appellant. It is not within the power of the parties, by the descriptive terms of their contract, to convert a local business into an interstate commerce business protected by the interstate commerce clause."

We have examined the cases cited by defendants, but none of them are in point. Because they are numerous, we shall refer to but a few of them out of regard for space. Some involve a tax on property in actual interstate transit or in the carrier's possession for immediate movement as soon as its facilities (a pipe line) will permit, as in Eureka Pipe Line Co. v. Hallanan,257 U.S. 265, 42 S. Ct. 101, 66 L. ed. 227. Here, the transit was ended. Carson Petroleum Co. v. Vial, 279 U.S. 95,49 S. Ct. 292, 73 L. ed. 626, and Texas N. O. R. Co. v. Sabine Tram Co. 227 U.S. 111, 33 S. Ct. 229, 57 L. ed. 442, were distinguished in Nashville, C. St. L. Ry. Co. v. Wallace,288 U.S. 249, 266-267, 53 S. Ct. 345, 349-350, 77 L. ed. 730,737-738, 87 A.L.R. 1191, 1198-1200, upon the ground that in those cases the whole shipment was destined for foreign countries and consequently they were not applicable where, as here, no "ascertainable part of the gasoline" had a destination beyond the state. The instant case is stronger for state taxation, because not only no ascertainable part of the gasoline was destined for reshipment beyond the state of Minnesota, but no destination for any part thereof was known or had been ascertained. Furthermore, in the cited cases storage was due to necessary delay while accumulating a cargo and waiting for ships, whereas here there was no delay for either purpose; rail transportation was at all times available. Some of the cited cases, like Southern Pac. Terminal Co. v. I.C.C.219 U.S. 498, 31 S. Ct. 279, 55 L. ed. 310, involve the extent of the power of congress to regulate interstate commerce. The cited case involved the question of the right of congress to prohibit a carrier from granting a shipper a preference by leasing to him a pier and improvements thereon to manufacture cottonseed into cake for foreign shipment. The Supreme Court of the United States has emphasized that cases involving the reach of federal power are of no particular value as precedents in determining whether a particular business apart from the statutory regulation constitutes interstate commerce. A. B. Kirschbaum Co. v. Walling, 316 U.S. 517,62 S. Ct. 1116, 86 L. ed. 1638. As said in Chicago Board of Trade v. Olsen, 262 U.S. 1, 34, 43 S. Ct. 470, 476, 67 L. ed. 839, 849: "It was held that this [regulation under the Packers and Stockyards Act] could be done even though the sales andpurchases by commission men and by dealers were in and ofthemselves intrastate commerce, the parties to sales and purchases and the cattle all being at the time within the city of Chicago." (Italics supplied.) Substantially the same observation was made in Atlantic Coast Line R. Co. v. Standard Oil Co. 275 U.S. 257, 48 S. Ct. 107, 72 L. ed. 270.

Furthermore, most of the cases cited by the defendants, such as Southern Pac. Terminal Co. v. I.C.C. 219 U.S. 498,31 S. Ct. 279, 55 L. ed. 310; Eureka Pipe Line Co. v. Hallanan,257 U.S. 265, 42 S. Ct. 101, 66 L. ed. 227; Champlain Realty Co. v. Town of Brattleboro, 260 U.S. 366, 43 S. Ct. 146,67 L.ed., 309, 25 A.L.R. 1195; Carson Petroleum Co. v. Vial,279 U.S. 95, 49 S. Ct. 292, 73 L. ed. 626; and Texas N. O. R. Co. v. Sabine Tram Co. 227 U.S. 111, 33 S. Ct. 229,57 L. ed. 442, are cited and classified in such decisions as Southern Pac. Co. v. Gallagher, 306 U.S. 167, 59 S. Ct. 389,83 L. ed. 586; Minnesota v. Blasius, 290 U.S. 1, 54 S. Ct. 34,78 L. ed. 131; and Nashville, C. St. L. Ry. Co. v. Wallace,288 U.S. 249, 53 S. Ct. 345, 77 L. ed. 730, 87 A.L.R. 1191, where it is pointed out that the cases cited by defendants have no application in a fact situation such as is here involved.

Our conclusion is that the gasoline came to rest at the tank farm so as to become a part of the mass of the property within the state and subject to state taxation. Under the circumstances, reshipment of the gasoline by rail to other points in the so-called northern area did not establish a continuity of movement, and consequently the gasoline was not in transit at the time the tax in question was imposed.

3. There is no room here for a finding that the processing and storage at the tank farm and subsequent distribution facilitated the interstate movement or constituted a temporary interruption of the interstate movement due to the necessities of the journey or for purposes of safety and convenience in the course of the movement. The plain fact is that processing, storage, and distribution neither facilitate nor impede transportation, but are separate local activities engaged in by the shippers to suit their convenience and necessities. A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495,55 S. Ct. 837, 79 L. ed. 1570, 97 A.L.R. 947; Federal C. W. Co. v. McLean, 291 U.S. 17, 54 S. Ct. 267, 78 L. ed. 622; Atlantic Coast Line R. Co. v. Standard Oil Co. 275 U.S. 257,48 S. Ct. 107, 72 L. ed. 270. The only intent which the court may consider is an objective one disclosed by the ultimate facts which are not in dispute. As said in Western Oil Refining Co. v. Lipscomb, 244 U.S. 346, 349, 37 S. Ct. 623, 624,61 L.ed. 1181, 1184: "Ordinarily the question whether particular commerce is interstate or intrastate is determined by what is actually done * * *."

The findings that the processing and storage facilitated interstate transportation are opposed to the undisputed facts and are but inferences in the nature of conclusions made by the trial court by applying to them what it conceived to be applicable rules of law. Such findings of fact are not entitled to any more weight than a conclusion of law made by a trial court. As said in Country Club D. S. Co. v. Village of Edina,214 Minn. 26, 32, 8 N.W.2d 321, 325:

"* * * When findings of fact are couched in general terms that anticipate the result and disclose that they are colored by an erroneous conception of the law applicable, this court will not give them the weight to which they are ordinarily entitled."³

What we said concerning a similar conclusion which the trial court stated was a finding of fact in the case of S. R. A., Inc. v. State, 213 Minn. 487, 500, 7 N.W.2d 484, 490, applies here:

"Finding No. 13, so-called, was not within the stipulated facts. It was inserted by the court on its own motion. It is without support as a finding of fact and amounts to no more than a conclusion of law. The facts being without dispute otherwise, it may be stricken as irrelevant to the issues."

The state is entitled to judgment for the taxes in question.

Reversed with directions to enter judgment in favor of the state in accordance with the views stated herein.

³ In Baumgartner v. United States, 322 U.S. 665, 671,64 S. Ct. 1240, 1243, the Supreme Court of the United States said:

"* * * Finding so-called ultimate 'facts' more clearly implies the application of standards of law. And so the 'finding of fact' even if made by two courts may go beyond the determination that should not be set aside here. Though labeled 'finding of fact,' it may involve the very basis on which judgment of fallible evidence is to be made. Thus, the conclusion that may appropriately be drawn from the whole mass of evidence is not always the ascertainment of the kind of 'fact' that precludes consideration by this Court."