James v. Kentucky Refining Co.

113 S.W. 468, 132 Ky. 353, 1908 Ky. LEXIS 126

• Court: Court of Appeals of Kentucky
• Decided: November 17, 1908
• Status: Published

Opinions

Opinion of the Court by

Chief Justice O’Rear

Reversing.

Appellee is a domestic corporation, whose principal business is the manufacture of oil from, cotton seed,' the refining and sale of such oil, and dealing in the, by-products of the manufacture1. It owns and operates 1 200 or more tank cars for transporting its oil to market and to its customers. The cars are the familiar oil tank railroad cars in general use for transporting oil in large quantities. Appellee used all its cars in its own business. The method is to hire the cars to the transporting railroads at so much per mile; appellee paying the carrier roads their customary rates for hauling its oils. ' The net result is appellee furnishes cars to the railroad companies which it patronizes in which to carry its oils, thereby engaging to that extent in the business of a carrier. The State Board of Valuations and Assessments required appellee to report its business done as such carrier, as is required of common carriers generally, and thereupon assessed a franchise tax against it based upon the valuation placed by the board upon the franchise it was enjoying in respect to such business of furnishing these special freight .cars for the transmission of freight traffic.

The statute under which the State Board of Valuations and Assessments proceeded is section 4077, Ky. St. 1903, which reads as follows: “Every railway company or corporation, and every incorporated bank, trust company, guarantee or security company, gas company, water company, ferry company, bridge company, street railway company, express company, electric light company, electric power company, telegraph company, press dispatch company, telephone company, turnpike company, palace-car company, dining-car company, sleeping-car company, chair-car company, and every other like company, corporation or association, also every other corporation; company or association having or exercising any special or exclusive privilege or franchise not allowed by law to' natural persons, or performing any public service, shall, in addition to the other taxes imposed on it by law, annually pay a tax on its franchise to the state, and a local tax thereon to the county, incorporated city, town and taxing district, where its franchise may be exercised. The auditor, treasurer, and Secretary of State are hereby constituted a board of valuation and assessment, for fixing the value of said franchise, except as to turnpike companies, which are provided for in section 4095 of this article, the place or places where such local taxes are to be paid by other corporations on their franchise, and how apportioned, where more-than one jurisdiction is entitled to a share of such tax, shall be determined by the board of valuation and assessment, and for the discharge of such other duties as may be imposed on them by this act. The auditor shall be chairman of said board, and shall convene the same from time to time, as the business of the board may require. (Assessment of franchises in first and second class cities, sec. 2984a.) ”

This suit was brought and successfully maintained in the circuit court for an injunction against the state board staying it from proceeding to collect the franchise tax so assessed. It is conceded by the state that, if appellee is liable for the franchise tax, it is because it is a like company to some of these enumerated in section 4077, Ky. St. 1903, supra. A very similar question came before this court in the comparatively recent case of Louisville Tank Line v. Commonwealth, 123 Ky. 81, 93 S. W. 635, 29 Ky. Law Rep. 257. In that case the appellant owned' a number of cars identical with those owned by appellee. It rented them all to one customer — an oil refining company — who used them in its business precisely as appellee does. The question was whether that appellant was liable to pay the franchise tax laid by section 4077, Ky. St. 1903. We held that it was; that it was a like company to palace-car and dining-car companies. It is claimed by appellee in the argument in this case that the Louisville Tank Line Case is not in point, and may be differentiated from this one because in the former the business of the company was to own and lease such cars for the accommodation) of freight traffic, while here the owning and using such cars by appellee was a mere incident to its business; but we fail to see that it makes any difference whether the business of engaging, though partially, in the traffic of freight carrying, is the main or ^incidental business of the person exercising such franchise, for a person who is a taxpayer may be engaged in any number of occupations, any or all of which may be connected, yet some of them be of a character that a license, tax to conduct them might be lawfully exacted by the state.

Appellee also contends that its charter does not authorize or permit it to engage in the business of a carrier, or in any business save that mentioned in its articles of incorporation; that therefore it does not exercise the franchise sought to be taxed. The franchise spoken of by this statute is not the right to do the thing, but the doing of it. The state does not seek by this section to tax the right to do it. It fixes a value upon the privilege which has been enjoyed, and taxes that value as property of the person who has exercised the privilege. The right to be a corporation is one thing; the fact that the corporation actually engages in a certain business, or enjoys a privilege peculiar to such business, is or may be quite a different thing. The legislative purpose was to classify certain kinds of employment, which upon an examination of' the statute will be seen to have been all of a kindred nature — it was the serving of the public in some sense. It does not appear to us to be material whether the-person exercising the privilege engaged in it as a sole occupation or not. Indeed, several of those named in the statute may he lawfully exercised by a single corporation, a firm or a single individual, such, for example, as electric light companies and water companies. Yet if such was the case, and in addition the-same concern manufactured and sold ice, or even if the latter were its principal business, it would not.be excused from paying not only one but two franchise taxes; one upon its business as an electric light company, and another upon its business as a water company. At the same time, it would be taxable as a corporation, firm, or natural person, as the case might be, upon its property employed in the manufacture of ice. Such, indeed, has been done under statutes not dissimilar to the ones now in existence as to a corporation which did both an insurance and a guaranty company business. Fidelity & Casualty Company v. Coulter, 115 Ky. 805, 74 S. W. 1053, 25 Ky. Law Rep. 200. While by statute in this state railroad companies may not engage in any other business, nor may hanks, yet, where the statutes are silent upon the subject, we apprehend a corporation may be empowered by its charter to engage in several different, kinds of business. Then, if it did, such as has been supposed above, and including electric power and gas. could it be maintained that such concern should pay hut a single franchise tax; whereas, under the statute, it might he subject to four if - each business were treated separately? Or that it should pay none, if' perchance it also did a business not enumerated as liable to a franchise tax, and made that business its principal business?

Such favoritism, such incentive to the concentration of so-called public enterprises in one hand, could not have been the legislative purpose. Equality -before the law is the great aim of an enlightened and 'free Commonwealth. Particularly Is. this so With respect to the tax gathering function of government. '.To that end classification of subjects of taxation is •attempted. Some classifications deal with persons, others with property, and still others occupations. If a single taxpayer should fall within several instead of a single classification, it would argue nothing ugainst the validity of the tax, nor necessarily bring it into repugnance with the Constitution upon the ground that it was double taxation. An examination of section 4077, Ky. St. 1903, shows a classification ■of certain kinds of business, engaging in any of which is deemed the exercise of such a privilege as that it is reckoned as property, because it gives to the more familiar forms of property employed in the business a peculiar earning value which it would not otherwise have. It is not the mere privilege of doing the thing, but it is the value of the property so employed enhanced by the manner of its employment, which the Legislature has named a franchise for taxing purposes, and taxes it as a separate value of the property. Commonwealth v. Ledman, 106 S. W. 247, 32 Ky. Law Rep. 452. It will be observed it is never taxed unless property otherwise taxable is employed in the designated occupations; nor is it ever taxed independently of, or without reference to, the tangible property to which it is by this statute annexed. It is therefore not an occupation tax, as that term is used in law generally, and for the same reason is not a ' tax upon the mere privilege of engaging in the business. Among the subjects so classified by this statute is that of carriers of freight and passengers by means of railroads, and their various equipages.. If the carrier is a railroad company, its designation is clear, and its liability under the statute not disputed; but railroad companies are known to be not the only common carriers of freight and passengers, by the use of railway facilities. Express companies,, not owning either tracks, locomotives, or cars, are yet. such carriers. Hence they are included. Palace-car companies, owning cars, but neither tracks nor locomotives, are consequently included. Dining-car companies, which may be mere renters of cars, or for-that matter caterers upon cars owned and1 operated by any of the other carrier companies, are so included.. It has been- held under this statute that a railroad company operating over tracks not owned nor used exclusively by it was subject to the tax, and by like reasoning if it also leased its cars, instead of owning them, it would seem to be liable. It has also been held that a railroad company owning a track but no equipage was liable where its track was leased to and used by another company by perpetual lease. Illinois Central R. R. Co. v. Commonwealth, 108 S. W. 245, 32 Ky. Law Rep. 1112. And as we have seen in tho Louisville Tank Line Case, supra, a concern which owned cars but did not operate them, leasing them all to one customer, was liable: to the tax. The idea. seems to us to be a simple one. The business of carry-, ing freight or passengers upon railroad's was deemed to impart a peculiar and special value to' all the physical property so employed. Therefore the special value so added was to be assessed and taxed. By whomsoever owned, whether operated by the owner or not, if it engaged in the carrying business, it falls within the statutory classification. If it does much or little, yet does bear some of the burden and enjoy some of the profits of railway commerce, it is so classified, and must he taxed upon the franchise thereby imparted to it and enjoyed by its owner. For these reasons, in addition to those advanced in Louisville Tank Line v. Commonwealth, supra, we hold that appellee is a like company to those carrier companies named in the statute. ^

Appellee complains that it reported under the Morris Bill (Revenue Act 1906, Laws 1906, p. 88, c. 22) and was assessed and paid a license tax for the year in suit (1907) upon its capital. It or the taxing officers, one or all, may have erred, but that will not prevent a correct application of the law when invoked by the taxing power. Doubtless, credit may be had on the tax now sought to be enforced for any excess, if there was any, so paid on the other assessment, for appellee was undeniably liable on its capital for the tax due under the act of 1906, so far as the capital was not employed in this carrying business. To the extent it was employed, it seems the correct method is to assess separately the .tangible property so employed, and then in addition the franchise tax discussed.

We will notice, in closing, a final argument made by appellee; that is, that it was carrying its own goods, in its own cars, to its own customers, and was not in any sense a common carrier, and that many concerns, such for example as coal mines, quarries, and the like, have tramroads upon which they operate their own cars and motive power in transporting their own property to connecting railroads. Such illustrations may be carried to even greater extreme, and might include the use by a naan of his own well bucket. None of these illustrations seem to us to embarrass the question. The legislative classification dealt with the carrying business. That is commonly understood, and the Legislature consequently must have meant to deal with such traffic after it had become a part of the general volume. It was dealing with the tracks and vehicles engaged in that -business. It knew they had an exceptional value because they were so engaged, and that value, wherever found, was intended to be taxed separately as part of the owner’s property.

We think the learned trial court erred in his construction of the statute.

The judgment is reversed, and cause remanded, with directions to dismiss the petition.