Union Refrigerator Transit Co. v. Lynch , 48 L.R.A. 790 ( 1898 )

After stating the case,

Bartch, J.,

delivered the opinion of the court.

The appellant has challenged the power of the State to levey and collect the tax in question, in the first instance, upon the ground that the cars, being only transiently within the State from time to time, acquired no such situs within its borders, as to give it jurisdiction over them for the purposes of taxation.

The power to tax is founded in necessity. It is an incident of sovereignty, .possessed by the government, even though not expressly conferred by the people. A tax is a contribution imposed by the government upon the people for the service of the state. In return for such contribution, the state affords protection to life, liberty, and property, and this is essential to civilization and the very existence of the state. The assessment and collection of taxes, therefore, are among the highest acts of the supreme power of the government. The power of taxation is a legislative power, and no principle of law is better settled than that such power extends to all property, whether real or personal, tangible or intangible, within the borders of the state, not exempt under the Constitution and laws of the United States; and, except so far as the comity of the State permits, such property, for the purposes of taxation, is not affected by the laws of any other state. Therefore, in order that property may be subjected to taxation, it is not a requisite that the owner should reside in the state, and this is true as to personal property, tangible or intangible, as well as to real. Regardless of where the owner’s domicile may be, it is the duty of the state to furnish protection to his property, and in turn the property must bear a just proportion of the burdens of the government.

The ancient rule indicated by the maxim too biZia sequun- '■ tur personam, that personal property is to be regarded as j subject to the lex domicilii, has never been of universal ap- j plication in this country, and in modern times has seldom ’ interfered with the power to levy taxes upon such property. The origin of that doctrine dates from an ancient time when jewels and gold principally constituted the movable property, and that could be taken by the owner from one place to another, but such has not been the case in recent times, since, in the continued progress of the world, the accumulated wealth consists in lai’ge proportions of personal property, including not only jewels and gold, but also a great variety of other personal property, much of which is intangible, as franchises, privileges, etc., but nevertheless property representing value, and none of which is immediately connected with the person of the owner, yet over all of which it is incumbent upon government to extend its protection. The constantly increasing variety of such property, perceptible and imperceptible, tangible and intangible, has caused the ancient rule, expressed in the maxim, to yield more and more to the lex-situs, and while it is true that for many purposes personal property is subject to the law of the place of the owner’s domicile, still the law'is well settled that for the purposes of taxation, and for other purposes, such property has its actual situs where it has been brought and used by its owner, and is subject to the law of that, place. Hence, if the owner reside in one State and his movables are taken to another, and used there, they may become the subject of taxation in the latter State. Such property may be separated from its owner, and he may be taxed because of it, at the place where it is found, although not the place of his domicile.

In his commentaries on the Conflict of Laws, section 550, Mr. Justice Story, discussing jurisdiction as regards property, observed that, “Although movables are for many purposes to be deemed to have no situs, except that of the domicile of the owner, yet this being but a legal fiction, it yields whenever it is necessary for the purpose of justice that the actual situs of the thing should be examined. A nation within whose territory any personal property is actually situate has an entire dominion over it while therein, in point of sovereignty and jurisdiction, as it has over immovable property situate there.” Pullman Car Co. v. Pennsylvania, 141 U. S. 18.

The power to tax being inherent in the government, the State unquestionably has the right, through the legislature, to exercise that power over all property which may be found within its borders, whether brought there temporarily or otherwise, for the purposes of business, or for trade, or convenience, unless restrained or limited by constitutional provision, and courts cannot control the exercise of such power, except when it conflicts with constitutional limitations.

In McCulloch v. State of Maryland, 4 Wheat. 316, 429, Mr. Chief Justice Marshall, delivering the opinion of the court, after defining the nature and extent of the original right of taxation which remains with the States, said: “It may be objected to this definition, that the power of taxation is not confined to the people and property of a state. It may be exercised upon every object brought within its jurisdiction. This is true. But to what source do we trace this right ? It is obvious that it is an incident of sovereignty and is coextensive with that to which it is an incident. All subjects over which the sovereign power of a state extends, are objects of taxation; but those over which it does not extend, are, upon the soundest principles exempt from taxation. This proposition may almost be pronounced self-evident. The sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission.”

So in Transportation Co. v. Wheeling, 99 U. S. 273, Mr. Justice Clifford, delivering the opinion of the court, after ’ citing authorities to the proposition that the power to tax for the support of the State government exists in the State independently of the national government; and that it may well be assumed that where there is no cession of contradictory or inconsistent jurisdiction in the United States, nor any restraining compact in the constitution, the power in the states to tax for the support of the State authority, reaches all the property within the State which is not properly regarded as the instruments or means of the Federal Government, observed: “Beyond question these authorities show that all subjects over which the sovereign power of a State extends are objects of taxation, the rule being that the sovereignty of a State extends to everything which exists by its own authority or is introduced by its permission, except those means which are employed by congress to carry into execution the powers given by the people to the Federal Government, whose laws, made in pursuance of the constitution, are supreme.”

From the foregoing considerations it is clear that the power of this State to tax the personal property in question herein is not affected by the fact that the Union [Refrigerator Transit Company is a creature of another State in which it has its domicile, nor because of the fact that the cars were only transiently in this State, or were furnished for transportation of perishable freight over various lines of railroad throughout the United States. It is, therefore, evident that this State has power to tax such cars when brought within its territory or jurisdiction and are found there, but whether by apt legislation, it has exercised its authority in this case is a question to be hereinafter determined.

Counsel for the appellant has cited, numerous cases to support the contention respecting the question of situs above considered.

Crandall v. State of Nevada, 6 Wall. 35. The first case cited was one where a statute providing for the levy of a “tax of |1 upon every person leaving the State by railroad, stage coach, or other vehicle” engaged in the business of transporting passengers, was held unconstitutional and void.

Moore v. Wilkins, 10 N. H. 452, simply decides that an individual is to be taxed in the place where he is residing, and not in another town where he has gone for a temporary purpose only, both places being in the same State.

So, in Robinson v. Longley, 18 Nev. 71, it was held that a travelling circus and menagerie, owned by a nonresident and brought into the State, to be exhibited at various places, and then taken into and through other States for the same purpose, was not subject to taxation in the State of Nevada.

McCulloch v. Maryland. 4 Wheat. 316, was a case where a tax imposed by the State of Maryland on a branch of a bank of the United States’, located in that State, was held unconstitutional, but clearly that case does not militate against the principles hereinbefore considered, the tax imposed being on property over which the United States had jurisdiction.

In the case of the State Freight Tax, 15 Wall. 232, it was held that the statute of a State, imposing a tax upon freight taken up within the State and carried out of it, or taken up without the State and brought within it, is repugnant to the Constitution of the United States, a tax upon freight, transported from State to State, being a regulation of commerce among the States.

In Coe v. Errol, 116 U. S. 517, it was decided that goods on their way through a State from a place outside thereof to another place outside thereof, are subjects of interstate or foreign commerce, and are not taxable by the State through which they pass.

In Conn. River L. Co. v. Columbia, 62 N. H. 286, it was held that logs temporarily in a river awaiting transportation from one State to another were exempt from State taxation. „

Pullman Southern Car Co. v. Nolan, 22 Fed. Rep. 276, is a case where the State of Tennessee attempted by-statute to impose a “privilege tax” on sleeping cars in the transportation of interstate passengers, and the court held that the cars had no situs in that State for such purpose. This was not a tax based on value, but was an arbitrary fixed charge on the business without regard to the articles employed.

Likewise as to Pickard v. Pullman Southern Co., 117 U. S. 34, which holds the same act of Tennessee void so far as it applies to the interstate transportation of passengers.

Reliance is also placed by the appellant to sustain the proposition that the cars in question had no situs in this State for the purpose of taxation, upon Morgan v. Parham, 16 Wall. 471; Hayes v. Pacific Mail Steamship Co., 17 How. 596, and St. Louis v. The Ferry Co., 11 Wall. 423, but those are cases where ships or vessels were engaged in inter-state or foreign commerce upon the high seas, and were registered at their home ports under the laws of the United States, at the owner’s domicile, and were therefore held not to be subjects of taxation in another state at whose ports they temporarily touched for the purpose of delivering or receiving passengers or freight. The distinction between ships and vessels, having their situs fixed by Congress, sailing on the high seas, only temporarily and incidentally touching ports, and cars and other vehicles not having their situs so fixed, and used for transportation on land only, is marked and obvious.

Mr. Justice Bradley, in Railroad Co. v. Maryland, 21 Wall. 456, speaking of transportation on land and water, observed: ‘ ‘ Commerce on land between the different states is so strikingly dissimilar, in many respects, from commerce on water, that it is often difficult to regard them in the same aspect in reference to the respective constitutional powers and duties of the State and federal governments. No doubt commerce by water was principally in the minds of those who framed and adopted the 'constitution, although both its language and spirit embrace commerce by land as well. Maritime transportation requires no artificial roadway. Nature has prepared to hand that portion of the instrumentality employed. The navigable waters of the earth are recognized public highways of trade and commerce. No franchise is needed to enable the navigator to use them. Again, the vehicles of commerce by water being instruments of intercommunication with other nations, the regulation of them is assumed by the national legislature. So that State interference with transportation by water, and especially by sea, is at once clearly marked and distinctly discernible. But it is different with transportation by land. This, when the constitution was adopted, was entirely performed on common roads, and in vehicles, drawn by animal power. No one at that day imagined that the roads and bridges of the country (except when the latter crossed navigable streams) were not entirely subject, both as to their construction, repair and management, to State regulation and control.”

So, it will be noticed, upon examination, that the case at bar may be distinguished from each of the cases cited by the appellant, on the question of situs, and thus far considered. Each one presented different facts and different questions, and none of them can be regarded as authority here.

There has been cited, however, on this same point, the cases of the Central R. R. Co. v. State Board of Assessors, 49 N. J. L. 1, and Bain v. Railroad, 105 N. C. 363, and tbe.se, it must be admitted, support the contention of the appellant, and some of the cases above distinguished are therein cited as authority. We do not think those decisions are in harmony with the weight of authority, and they are clearly opposed to the latest decisions of the Supreme Court of the United States upon this subject, as appears from the cases of the Pullman Car Co., v. Pennsylvania, 141 U. S. 18; Adams Express Co. v. Ohio, 165 U. S. 194, and Adams Express Co. v. Ohio, 166 U. S. 185.

We conclude that the cars in question had, for the purposes of taxation, a situs in this State.

Nor do we think the tax imposed is a regulation of interstate commerce. It is not a tax on persons or freight in transit through this State to other States or countries, nor on the .right of transit or transportation; nor is it a license or privilege tax, or tax on business or occupation, or on property of the United States located in this State. It is essentially a tax on property found and used in this State, and valued, for the purpose of taxation, like other '' personal property within the jurisdiction of the State, and, although the cars may have been employed in interstate commerce, the State is not prohibited by the Constitution or laws of the United States, from taxing them as other personal property within its jurisdiction. This has been so declared by the Supreme Court of the United States.

In Pullman’s Car Co. v. Pennsylvania, supra, where the question was whether Pullman cars could be taxed in Pennsylvania, the corporation being a creature of the State of Illinois, having its home there, itself not operating any railroad but merely furnishing cars to the various railroad lines, which cars were simply run into Pennsylvania and out again in the ordinary course of business. Mr. Justice Gray, delivering the opinion of the court, after stating that, for the purposes of taxation, it had been repeatedly affirmed by that court, that personal property might be separated from its owner, and that he might be taxed, on its account, at the place where it was, although not in the place of his own domicile, and even if he were not a resident of the State imposing the tax, said: “It is equally well settled that there is nothing in the Constitution which prevents a state from taxing personal property, employed in interstate or foreign commerce, like other personal property within its jurisdiction. ”

Again he observed: “The cars of this company within the State of Pennsylvania are employed in interstate commerce ; but their being so employed does not exempt them from taxation by the State; and the State has not taxed them because of their being so employed, but because [of their being within its territory and jurisdiction. The cars were continuously and permanently employed in going to and fro upon certain routes of travel. If they had never passed beyond the limits of Pennsylvania, it could not be doubted that the State could tax them, like other property within its borders, notwithstanding they were employed in interstate commerce. The fact that, instead of stopping at the State boundary, they cross that boundary in going out and coming back, cannot effect the power of the State to levy a tax upon them. The State, having the right, for the purposes of taxation, to tax any personal property found within its jurisdiction, without regard to the place of the owner’s domicile, could tax the specific cars which at a given moment were within its borders. The route over which the cars travel extending beyond the limits of the State, particular cars may not remain in the State; but the company has at all times substantially the same number of cars within the State, and continuously and constantly uses there a portion of its property.”

In Adams Express Co. v. Ohio, 165 U. S. 194, Mr. Chief Justice Fuller, speaking for the court, said: “Although the transportation of the subjects of interstate commerce, or the receipts received therefrom, or the occupation or business of carrying it on, cannot be directly subjected to state taxation, yet property belonging to corporations or companies engaged in such commerce may be; and whatever the particular form of the exaction, if it is essentially only property taxation, it will not be considered as falling within the inhibition of the constitution. Corporations and companies engaged in interstate commerce should bear their proper proportion of the burden of the governments under whose protection they conduct their operations, and taxation on property, collectible by the ordinary means, does not effect interstate commerce otherwise than* incidentally, as all business is affected by the necessity of contributing to the support of government. ”

So, in Adams Express Co. v. Ohio, 166 U. S. 185, Mr. Justice Brewer, delivering the opinion of the court on rehearing, said:

“Again and again has this court affirmed the proposition that no state can interfere with interstate commerce through the imposition of a tax, by whatever name called, which is in effect a tax for the privilege of transacting such commerce. And it has as often affirmed that such restriction upon the power of a state to interfere with interstate commerce does not in the least degree abridge the right of a state to tax at their full value all the instru-mentalities used for such commerce.” Postal Telegraph Cable Co. v. Adams, 155 U. S. 688. Marye v. B. & O. Railroad, 127 U. S. 117. Western Union Tel. Co. v. Massachusetts, 125 U. S. 530. Maine v. Grand Trunk Ry. Co., 142 U. S. 217. Massachusetts v. Western Union Tel. Co., 141 U. S. 40.

We come now to the remaining question whether there are any provisions of law which authorize a tax u yon such property when found within the jurisdiction of the state ?

The appellant, it seems, contends that our laws, respecting taxation, were only intended to apply to car lines, or car companies owning and operating car lines within this State, and to such property connected with such lines as abides and has its actual situs within the State, and that there is no language employed in any of the provisions of law which contemplates the taxation of cars, belonging to an owner residing in a foreign state, and used in interstate commerce, although, in such use, such cars may, for a portion of the time, be within the jurisdiction of this State.

In Sec. 2, Art. 13, of the state constitution, it is provided: “All property in this State, not exempt under the laws of the United States, or under this constitution, shall be taxed in proportion to its value, to be ascertained as provided by law.” This is an express constitutional provision and is adequate to impose a tax upon all property which has a situs within the State for such purpose, except property exempt under the laws of the United States, or under the constitution of this State. It is therefore apparent that there is an apt provision in the fundamental law under which the appellant’s cars could be taxed, they, as we have seen, having a situs in the State fqr such purpose, and not falling within the exemption. Substantially the same provision is contained in. Sec. 1, of the act of the legislature, approved April 5, 1896, Session Laws, p. 423, and what has been said respecting the constitutional provision, above quoted, in the main applies with equal force to that section of the statute. The value of all property, however, for the purposes of taxation is “to be ascertained as provided by law.” The manner of ascertaining the value being thus referred to the legislature, it, in the same act, Sec. 55, Session Laws 1896, provided: “The president, secretary or managing agent, or such other officer as the State Board of Equalization may designate, of any corporation, and each person or association of persons owning or operating any railroad, street railway car, telegraph or telephone line or railway depot in this State, must, on or before the first Monday in March in each year, furnish the said board a statement signed and sworn to by one of such officers, or by the person or one of the persons forming such association, showing in detail for the year ending on the first Monday in March in each year; all the property, real, personal or otherwise, owned by said corporation, person or association of persons in the State, including a statement of mileage in each county, as valued on the first Monday of March of the same year and such other information as the board may require. Any officer of a railroad company, street railway, telegraph or telephone line, railway depot, or car company, failing on demand to furnish the statement required of him, shall be subject to the penalty provided in subdivision 2, Sec. 18, of this act.”

This section makes it incumbent upon certain officers of railway, car, telegraph,- and telephone lines to furnish the State Board of Equalization statements of property as therein provided, and for failure to do so subjects them to certain penalties. These statements were doubtless intended as a convenience for the board in making the assessment which is expressly provided for in section 56, as follows: “The State Board of Equalization must meet at the State capítol, or at such other places in the State as the board may determine, on the second Monday in July, and continue in open session from day to day, Sundays and legal holidays excepted, until the third Monday in August, and later, if the business of the board requires it. At such meetings the board must assess all property and franchises of railroads, car, street railway, railway depot, telephone and telegraph companies, but franchises derived from the United States must not be assessed. All such property must be assessed in the name of the person, corporation or association owning, leasing or using the same. Between the first and third Mondays of August, the board must apportion the total assessment of all property and franchises of such companies to the several counties in proportion to the value of such property in each county.”

This section authorizes, as will be observed, the assessment, by the board, of all the property referred to in the preceding section, and declares that all such property shall be assessed in the “name of the person, corporation or association owning, leasing or using the same.” The manifest intention of the legislature, in the enactment of these provisions of statute, was that all such property should be taxed, whether owned by a resident of this State or not, if the same was used within the state by the owner or by some person or corporation to whom the owner entrusted it for such use. Counsel for the appellant, however, called attention to the fact that in Sec. 55, there is no punctuation between the words “street railway” and “cars,” while the word “ car”is punctuated by a comma in section 56, and insists that the real intention of the legislature was to treat the owners of car lines the same as owners of railroads, street railways, telegraph or telephone lines, and that where it used the word “car” in each section, it meant car lines or car companies having, owning, operating and using such car lines within the State. In other words, that a car line means a physical line, or a line having a physical unity, as the realty composing a line of railroad between definite places, that, in order for the State- to tax such property, there must be a physical unity instead of a unity of use and management,' as was the case in respect to the cars in question. We cannot assent to this contention. The question of punctuation cannot be allowed to control in the construction of these provisions of the statute, against, as we think, the manifest intent of the legislature. It would be a most fallible standard by which to construe them. In the interpretation of statutes the true meaning of the lawmaker must be ascertained from the whole purview, and when that is manifest from a judicial inspection, the court will not permit punctuation to change it. To ascertain the real intention and meaning of the statute, the court will punctuate or disregard punctuation as may be necessary. Punctuation may, when the meaning is uncertain, furnish some indication of it, and in such case may even decide what the meaning is, but when the intention of the legislature is apparent from a reading of the statute, such intention must prevail regardless of punctuation. Suth. on Stat. Const., Sec. 232.

In this case we think the statute should be read with a comma between the words “street railway” and “car,” and when so read the terms used mean “street railway line,” “car-line,” etc., and “car line,” in the sense employed in the several enactments, may mean a considerable number of cars operated by a car company, as a car line, without, as in the case at bar, the actual reality, over which the rolling stock runs, being owned by the owner of the cars. Evidently such line has a unity of use and management, and the several constitutional pud statutory provisions are adequate to tax the cars when so employed and found within the jurisdiction of the State. The same question here involved, was, under similar legislation before the Supreme Court of Colorado, in Hall v. Refrigerator Transit Co., 24 Colo. 291, where, Mr. Justice Goddard, delivering the opinion of the court, said:

“ It is clearly manifest that the purpose of these constitutional and statutory provisions is to subject all property oivned or used by a railway or other corporation within the territorial limits of the State, to taxation according to its value, regardless of the domicile of its owner; and in so doing, they exercise a well-recognized function of legislation.”

Legislation, which is claimed to grant immunity from taxation, will be strictly interpreted against the exemption. “In such cases the rule of strict construction applies, and, in order to relieve any species of property from its due and just proportion of the burdens of the government, the language relied on, as creating the exemption, should be so clear as not to admit of reasonable controversy about its meaning, for all doubts must be resolved against the exemption. The power to tax rests upon necessity, and is essential to the existence of the state.” Judge v. Spencer, 15 Utah, 242; Suth. Stat. Const. Sec. 364.

Counsel for the appellant has cited, on this question, Marye v. Baltimore and Ohio Railroad, 127 U. S. 117, but that case cannot be regarded as controlling authority" in this, because the legislation therein considered was entirely different from that considered herein, the same applying to domestic corporations only.

No point is made in this case concerning the apportionment of the tax among the several counties of the State. We are of the opinion that the tax in question is lawful, and that the court properly dismissed the action.

The judgment is affirmed, with costs.

Zane, C. J. and Miner, J., concur.