Board of County Com'rs v. Johnson Oil Refining Co.

Chuses Nos. 23218 and 23219 originated in the county treasurer's office of Pawnee county. They were begun by the tax ferret. Appeals were taken to the county court and tried there by stipulation upon the same evidence. The appeals here are separate. The county court directed the entry upon the tax rolls of the taxable value of 380 tank cars owned by the Johnson Refining Company for the years 1925-28, inclusive. The taxable situs was found to be at Cleveland, Pawnee county, Okla. From the county court appeals were perfected to this court.

Cause No. 23342 originated in the board of equalization of Pawnee county. The Johnson Refining Company had listed for taxation, for the year 1,931, tank cars in the number 64. The board upon notice assessed 381 such cars. The refinery appealed to the district, court, where a judgment was entered directing the taxation of what was found to be the average number of tank cars (64) situated in the county during the year. From that judgment both the county and the taxpayer have appealed to this court.

These tank cars are engaged in interstate, and intrastate commerce. By the use of them the Johnson Oil Refining Company transports refined petroleum products from its refinery at Cleveland, Pawnee county, Okla., to various points within and without this state. Occasionally the refinery purchases for resale products from other refineries, and in that event the cars are shunted elsewhere for that purpose. These cars are marked: "Johnson Oil Refining Company, Cleveland, Oklahoma," or "When empty return to. Johnson Oil Refining Company, Cleveland, Oklahoma." The empty cars are, unless diverted by special order, as aforesaid, returned to Cleveland. Repair trackage is maintained at Cleveland. This accommodates from 12 to 15 cars, and at that point alone is located replacements and material for repair of these, cars. Other trackage at Cleveland accommodates 615 cars. The refinery loads from 35 to 40 cars per day. The cars upon return remain upon the track's from 24 hours to 10 days, depending on demand. This company is incorporated under the laws of Illinois and maintains an office at Chicago, but no trackage for the cars is there. Cleveland is the one place where the company always has use for these cars. All of these cars are allocated to the refinery at Cleveland, although movements of the cars in the delivery of products seems to be the result of sales contracts made from the office at Chicago. O.C. Goward is the superintendent of transportation for the refinery whose location is Cleveland. The Cleveland office had control and supervision of these can (R. p. 34, cause No. 23342). Empty cars are stored at Osage, Osage county. Okla., and Parsons by the railroad company when congestion occurs; they are subject to order and return to Cleveland when needed. The need is communicated to the railroad each day (R. p. 35, cause No. 23342), No tax is paid on these cars in Oklahoma, and no ad valorem tax is paid upon thorn in Illinois (R. p. 4, cause No. 23342).

Section 9574, C. O. S. 1921 [O. S. 1931, sec. 123171, provides:

"All property in this state, whether real or personal, including the property of corporations, banks and bankers except such as is exempt, shall be subject to taxation."

A lawful tax upon this property is dependent upon whether it has a situs for taxation at the time when and the place where the levy is sought to be made.

The corporation resists the tax in whole, asserting the situs for taxation Is not within this state; that despite the fact it listed for taxation in Pawnee county 64 cars during one of the years, it is not estopped to deny taxation in toto. It asserts that the cars were but temporarily at Cleveland as an incident to its interstate commerce. However, we find that the absence of the cars from Cleveland is but an incident to the conduct of its business. The corporation possesses but one refinery. It is located at Cleveland. In our opinion the taxable situs is there. Travis v. Dicky, 96 Okla. 256, 222 P. 527; State v. Timbrook's Est. (Mo. App.) 129 S.W. 1068. When this property is away from that point it is in transit, but its destination is always Cleveland, Pawnee county, Okla. So this property bas acquired a definite situs which takes it out of the general rule that personal property has its taxable situs at, the domicile of the ownor. Gulf Ref. Co. v. Tillinghast (La.) 94 So. 41.8. 26 R. O. L. 273. Within the terms of the statute these cars constitute "property within this state." They are merely temporarily absent at times from the Cleveland refinery, and then in transit for the delivery of products at various points. The entire number of tank cars are, taxable in Pawnee county. Prairie Cattle CO. v. Williamson. 5 Okla. 488,49 P. 937.

The judgments, of the county court are affirmed.

There is no law authorizing a tax based upon an "average number" of cars present on a given day at any one taxable point, and there was no application of that principle by administrative officers.

The judgment of the district court is erroneous as a matter of law. It is reversed, with directions to render judgment directing a listing for taxation of the entire number of the tank cars that have their base for operations within Pawnee county for the years involved.

There is another case herewith presented and considered on oral argument. It comes from Osage county and is styled and numbered, "In the Matter of Assessment of Omitted Property of Johnson Oil Refg. Co., No. 23334." Therein Osage county is claiming the right to collect taxes upon 50 of the cars already considered. The judgment therein was based upon an "average number theory" and predicated upon the presence of that number of these cars upon the railway siding in possession of the railroad, subject to call from the refinery at Cleveland. In our opinion these cars did not have a permanent abiding place within Osage county and were not subject to taxation elsewhere than in Pawnee county.

The judgment in that cause is reversed, with directions to dismiss the action.

CLARK, C. J., and HEFNER, CULLISON, SWINDALL, McNEILL, and KORNEGAY, JJ., concur.

LESTER, C. J., and ANDREWS, J., absent.

On Rehearing.