Portland v. Portland Gas & Coke Co.

150 P. 273, 80 Or. 194, 1915 Ore. LEXIS 72

• Court: Oregon Supreme Court
• Decided: July 20, 1915
• Status: Published

Opinions

Mr. Justice Burnett

delivered the opinion of the court.

In respect to the matters involved in this action, the City of Portland operates under a charter formulated by an act of the legislative assembly of the state approved January 23, 1903. Section 3 thereof reads thus:

“The City of Portland shall be invested within its limits with authority to perform all public services and with all govermental powers except such as are expressly conferred by law upon other public corporations and subject to the limitations prescribed by the constitution and laws of the state, except as hereinafter provided.”

Section 114 authorizes the council to assess, levy and collect taxes upon all property, both real and personal, not exempt from taxation within the city not exceeding seven mills on each dollar of valuation. Subdivision 21 of Section 73 empowers the council:

“To grant licenses with the object of raising revenue or of regulation, or both, for any and all lawful acts, things or purposes, and to fix by ordinance the amount, to be paid therefor, and to provide for the revoking of the same. No license shall be granted to continue for a longer period than one year from the date thereof. All money received from licenses for vehicles of every description, whether for pleasure or for business, shall go to the credit of the street repair fund, but the council may in its discretion set aside the moneys arising from licenses upon bicycles for the construction or repair of bicycle paths.”

The complaint alleges the public municipal character of the plaintiff under the act of January 23, 1903, and amendments thereto, and the corporate entity of the defendant. It states:

“That the defendant is now, and during all the times hereinafter mentioned or referred to has been, engaged in the business of selling and furnishing gas for lighting, heating, fuel and other commercial purposes within the corporate limits of the City of Portland.”

It is further averred that at a general city election on June 5, 1911, the legal voters duly enacted an ordinance entitled:

“An ordinance to provide additional revenue for the City of Portland; to levy a license on the gross receipts of persons and corporations selling gas, natural or manufactured, for lighting, heating, fuel or other commercial purposes within the City of Portland; defining the manner of ascertaining the nature and extent of such gross receipts; defining a person and corporation within the meaning of this ordinance, and providing a penalty for the violation of the provisions of this ordinance.”

This municipal enactment is set out at large in the complaint. After defining the word “person” to include an individual, or copartnership, and “corporation” to mean every corporation, company, association or joint-stock company, other than an individual or co-partnership, the ordinance, in Section 2, reads thus:

“Every person, or corporation, engaged in the business of selling or furnishing gas, either natural or manufactured, for lighting; heating, fuel or other commercial purposes within the City of Portland, shall pay to the City of Portland, a license of three (3) per centum of the gross receipts of such person or corporation received upon its business within the City of Portland, which license shall be paid annually by said person, or corporation, to the treasurer of the City of Portland on the first day of March of each year for the preceding year ending December 31st. Provided that the payment to be made as required by this section and the statement to be made as required by Section 3 hereof on March 1, 1912, shall be upon and cover and embrace the gross receipts of any such person, or corporation, between the date this ordinance takes effect and December 31,1911, ’ ’

In substance, Section 3 requires persons in charge of the business named to .make a sworn statement on or before March 1st of each year of its gross receipts, and declares the 3 per cent demand to be a debt recoverable by an action at law in the name of the City of Portland in any court having competent jurisdiction. A penalty is imposed upon the persons charged with that duty for failure to make the report. It is averred that the resident officers of the defendant company made a statement showing that its gross receipts from June 6,1911, to December 31st of the same year amounted to $587,639.47, but that the defendant has utterly failed to pay any part of the 3 per cent thereof as required by the ordinance.

1. It is contended by the company, and conceded by the city, that the exaction contemplated by the ordinance is a tax, for the reason that no regulation under the police power is attempted by the city enactment. On the contrary, it is confessedly a revenue measure, and this being true, by whatever term it may be characterized, whether license, or public burden, or enforced contribution, it is none the less a tax. The precise question presented is whether the city has the right to levy such a tax.

2, 3. The defendant argues that the exaction attempted was one levied upon the defendant’s franchises; that, inasmuch as these privileges were taxed under the general laws, the assessment of which was adopted as a basis for the city taxes, the demand provided for by the ordinance in question amounted to double taxation in favor of the city. Under Chapter 268 of the Laws of Oregon for 1907, reproduced in Section 3552, L. O. L., as amended by the act of February 26, 1913 (Laws 1913, p. 325), there is included within the terms “land, real estate and real property,” “all franchises and privileges granted by or pursuant-to any law of this state, or municipal ordinance or resolution, owned or used by any person or corporation, other than the right to be a corporation.” The general scheme of state taxation embodied in Chapter 8 of Title XXVIII, L. O. L., especially in Section 3670, requires that all taxes levied by any incorporated city or town shall be imposed upon the property therein respectively assessable according to its valuation as shown by the assessment-roll last compiled by the county assessor, and that they shall be collected by the county tax collector at the rate declared by the city authorities, and the amounts collected returned to the proper municipality. From the legislation mentioned the defendant would deduce two conclusions: (1) That its franchises have been taxed as real property and collection worked out through the county tax collector for the benefit of the city, and that to enforce the ordinance in question would amount to double taxation upon the same property; and (2) that the procedure thus fashioned by the state for the collection of municipal taxes is exclusive of all other methods of raising revenue by a city, with the result that on both grounds the ordinance is void. The state law providing that the work of the county assessor in listing property should be adopted by a city as a basis upon which to collect its tax refers only to assessable things to be taxed according to their value. It does not treat of a tax upon privileges independent of tangible property. It was not the intention of the legislative assembly to cut off all sources of revenue from municipalities except an ad valorem tax. The legislation of 1903 incorporating a city and the enactments of 1907 relating to the levy of city taxes based upon a county assessment must both be construed to stand, if possible. ■ The repeal of the former act by an implication supposed to be contained in the latter is not favored. Considering, therefore, that the act of 1907 relates only to property taxable on a valuation basis, we are of the opinion that it did not affect the power of the city to acquire revenue by granting licenses for any and all lawful acts, things or purposes as set out in subdivision 21 of Section 73 of the municipal charter.

4. It will be remembered that the statute classifying franchises and privileges as real property excepts therefrom the right to be a corporation. Conceding, then, for the moment that this is a burden imposed upon the property itself, still it would be competent to tax the franchise to be a corporation, for that portion of its granted privileges is clearly distinguishable from others which it might acquire by purchase or by the right of eminent domain. It is said, in Section 47a of Gray on Limitation of Taxation Powers, that:

“The franchise to be is generally taxed as a privilege. Doubtless in view of the general rules with respect to taxation of franchises it may also be taxed as property.”

And the author, indorsed by many precedents, makes a clear discrimination between the franchise to be and the franchise to do. The legislative assembly has observed the same distinction, putting the latter in the category of real property and leaving the question open as to the former. As stated by Mr. Justice Matthews in Memphis R. Co. v. Commissioners, 112 U. S. 609 (28 L. Ed. 837, 5 Sup. Ct. Rep. 299):

“The essential properties of corporate existence are quite distinct from the franchises of the corporation. The franchise of being a corporation belongs to the corporators, while the powers and privileges, vested in and to be exercised by the corporate body as such, are the franchises of the corporation.”

Looking at the matter of franchise as one of property from the ad valorem viewpoint, and remembering that according to its charter the city is invested within its limits with “all governmental powers,” we hold that it would be admissible to tax as property that part of the defendant’s franchise authorizing it to be a corporation; for that is expressly excluded by the state legislation from the category of real property.

5. The city, however, has not attempted to impose an ad valorem tax even upon the franchise of the defendant to be a corporation. Stripped of the euphemism of license, the ordinance in question must be construed as attempting to levy an occupation tax upon all persons and corporations engaged in the business of selling or furnishing gas within the City of Portland. Confessedly the object of the city legislation was to provide additional revenue. It does not attempt any regulation whatever on the manner in which the business shall be conducted. The municipality was given authority by its charter to grant licenses with the object of raising revenue. This amounts to nothing different from saying it had a right to impose an.occupation tax. It is plain that if an individual, having no right to lay a main in the street, or any other privilege of that kind,' should engage in the city in the business of selling gas compressed into tanks, it would be permissible for the municipality to levy an occupation tax upon him in addition to the property tax upon the appliances which he might use in the manufacture of the commodity. In like manner it could levy a tax according to value upon the teams, wagons and other vehicles used by transfer or express companies operating in the city, and in addition thereto might levy an occupation tax for the use of those very teams and vehicles. The right of the defendant corporation to do business at all in the city is referable to the franchise to be a corporation, for without that portion of its grant giving it identity as an artificial being it could not engage in any transaction whatever. It is quite as permissible to impose an occupation tax upon this conventional personage for the privilege of doing business in the city as it is upon a natural individual engaged in the same or similar enterprise. It is said by Mr. Justice Bean, in Oregon v. Pacific States T. & T. Co., 53 Or. 162, 164 (99 Pac. 427, 428):

“The annual license fee required by the act of 1903 to be paid by corporations is a business or excise tax on the right to be or exercise the powers of a corporation, and is in no sense a tax on property; nor is it a tax on the business or franchise which the corporation, when organized, may exercise. * # The right to be a corporation, or do business as such, rests entirely within the discretion of the state, and it may therefore require it to pay a specified sum each year, or at stated intervals, for the privilege. The payment of such fee or tax, however, does not exempt the corporation from other forms of taxation. It may be also required to pay a tax on its tangible property and a tax on its intangible property or franchise, the latter to be in proportion to its income or measured in any other way the lawmaking power may adopt.”

In New Jersey v. Anderson, 203 U. S. 483 (51 L. Ed. 284, 27 Sup. Ct. Rep. 137), the question was about the nature and validity of the franchise tax imposed by the State of New Jersey upon the Cosmopolitan Power Company, a corporation. The company was organized under the laws of that state, had its principal office there, but had no property in New Jersey. It conducted all its business and had all its holdings in the State of Illinois. Much like the ordinance here in question, the New Jersey statute required the company to make a statement of its business and pay a license fee or franchise tax of a certain per cent on its capital stock. Having failed to render the statement, the authorities levied a tax and presented the claim to the assignee in bankruptcy of the company. The Supreme Court of the United States, speaking by Mr. Justice Dat, after discussing the question, says:

“Without undertaking to analyze these numerous cases or to harmonize the views expressed by different' judges, we think the weight of judicial decision in that state favors the view that this is a tax imposed upon the right of the corporation to continue to be a corporation, with, power to exercise its corporate franchises, based upon the amount of its capital stock issued and outstanding.”

It is well established by the authorities that it is not double taxation to impose an ad valorem tax upon the property of a corporation or individual and likewise to prescribe a tax for the use of the same property all for the purpose of revenue. The one is a direct property tax, and the other is a privilege or occupation tax. The rule is thus succinctly stated in Section 1410, Dillon on Municipal Corporations (5 ed.):

“The state or the municipality under statutory authority may collect an ad valorem tax upon property used in a calling and may at the same time impose a license tax on the. pursuit as a condition of the right to carry on that pursuit, and the fact that both the property and the business or pursuit are taxed does not constitute double taxation”: Goldsmith v. Huntsville, 120 Ala. 182 (24 South. 509); Kents v. Mobile, 120 Ala. 623 (24 South. 592); Florida Cent. & P. R. Co. v. Columbia, 54 S. C. 266 (32 S. E. 408); Ex parte Hoffert (S. D.), 148 N. W. 20 (52 L. R. A. (N. S.) 949); Salt Lake City v. Christensen Co., 34 Utah, 38 (95 Pac. 523, 17 L. R. A. (N. S.) 898); Jackson v. Neff, 64 Fla. 326 (60 South. 350); Mark v. District of Columbia, 37 App. D. C. 563 (37 L. R. A. (N. S.) 440); Blackrock Copper M. & M. Co. v. Tingey, 34 Utah, 369 (98 Pac. 180, 131 Am. St. Rep. 850, and note, 28 L. R. A. (N. S.) 255).

We conclude, therefore, that the inclusion of its franchises, except the right to be a corporation, in the category of real property, does not exempt the defendant from the character of exaction for revenue purposes set out in the ordinance here involved. We hold, also, that the city legislation provided for an occupation tax which, might be imposed without any reference to regulation as a purely revenue measure. With the amount or reasonableness of the demand we have nothing to do upon the demurrer to the complaint. The sole question which we undertake to decide upon the issue as here presented is that the city has a right to impose a tax of the kind mentioned upon the privilege of doing business in the city as a dealer in gas.

In Banc. Statement by Mr. Justice Harris.

At an election held on June 5, 1911, the legal voters of the City of Portland adopted an ordinance which requires “every person, or corporation, engaged in the business of selling or furnishing gas, either natural or manufactured, for lighting, heating, fuel or other commercial purposes within the City of Portland” to pay the city “a license of three (3) per centum of the gross receipts of such person or corporation received from its business within the city.” The defendant refused to pay, and the city commenced an action to recover for the period commencing June 6, 1911, and ending December 31,1911. After alleging the corporate character of the plaintiff, and that the defendant is a private corporation engaged in selling gas, the complaint recites the ordinance in extenso, alleges the amount of the gross receipts during the period mentioned, and demands judgment for the tax and penalty provided for in the ordinance.

The judgment of the Circuit Court is reversed and the cause remanded for further proceedings.

Reversed.

Mr. Chief Justice Moore, Mr. Justice Benson and Mr. Justice Harris concur.