Atkinson, J.
1. From what has been said, it is to be observed that the case relates to two matters, namely: a tax assessment against tangible property of the company; and second, a claim of right to assess a franchise tax. We will consider each in the order named above. While some of the expressions used in the agreed statement of facts, if taken alone and disassociated from the context, might have the appearance of conceding that the comptroller-general was seeking to tax property outside of the State, yet, when taken as a whole, it is evident that the parties did not intend any such concession. The effort was to tax property in this State, and in doing so to apply the statute designed as a rule to ascertain the property so coming into the State and its proper valuation. The correspondence between the officers of the tank company and the comptroller-general, set out in the statement of facts, formed a part of the petition for injunction, which is to be taken most strongly against the plaintiff. It referred in express terms to Civil Code § 990, and showed that both parties contemplated that the return which the comptroller-general was insisting upon was such as should be made under the requirement of the statute. It was contended by the plaintiff that the effect of carrying out the scheme of the statute would tax property out of.the State. The comptroller-general denied that such would be the effect, and proposed only to tax cars in pursuance of the statute. The attack made by the plaintiff, being upon this method of taxing, resolved itself merely into an attack upon the constitutionality of the statute. Whether it was unconstitutional was a question of construction and of law, which the parties would not yield in the pleadings or in the statement of facts. A construction of the latter as a concession by the comptroller-general that he was attempting to tax cars that had not come into the State would make the comptroller-general assume a right to do a thing for which he had never contended, and be outside of the real issue — the constitutionality of the scheme of the statute.
2. In determining as to the constitutionality of the scheme of the statute referred to, resort must be had to its provisions. The [770]*770statute is embodied in the Civil Code, § 990, which is as follows: “Any person or persons, copartnership, company or corporation wherever organized or incorporated, whose principal business is furnishing or leasing any kind of railroad cars except dining, buffet, chair, parlor, palace, or sleeping-cars, or in whom the legal title in any such cars is vested, but which are operated, or leased, or hired to be operated on any railroads in this State, shall be deemed an equipment company. Every such company shall be required to make returns to the comptroller-general under the same laws of force in reference to the rolling-stock owned by the railroads making returns in this State, and the assessment of taxes thereon shall be levied and the taxes collected in the same manner as provided in the case of sleeping-cars in section 989.” The last sentence of the foregoing excerpt, by referring thereto, makes as a part of the statute the laws “of force” in this State “in reference to the rolling stock owned by the railroads making returns in this State.” In the same manner it makes Civil Code § 989 a part of the statute. The only law which refers to taxation of “rolling-stock” of railroads paying taxes in this State is embodied in Civil Code § 1031, and is evidently the law on that subject referred to in section 990. Section 1031 is as follows: “Kailro'ad companies operating railroads lying partly in this State and partly in other States shall be taxed as to the rolling-stock thereof and other personal property appurtenant thereto, and which is not permanently located in any of the States through which said railroads pass, on so much of the whole valué of rolling-stock and personal property as is proportional to the length of the railroad in this State, without regard to the location of the head office of such railroad companies.” The other section (989) referred to in section 990 is as follows: “Each non-resident person or company whose sleeping-cars are run in this State shall be taxed as follows: Ascertain the whole number of miles of railroad over which such sleeping-cars are run, and ascertain the entire value of all sleeping-cars of such person or company, then tax such sleeping-cars at the regular tax rate imposed upon the property of this State in the same proportion to the entire value of such sleeping-cars that the length of lines in this State over which such ears are run bears to the length of lines of all railroads over which such sleeping-cars run. The returns shall be made to the comptroller-general by the president, general agent, [771]*771or person in control of such cars in this State. The comptroller-general shall frame such questions as will elicit the information sought, and answers thereto shall be made under oath. If the officers above referred to in the control of said sleeping-cars shall fail or refuse to answer, under oath, the questions so propounded, the comptroller-general shall obtain the information from such sources as he may, and he shall assess a double tax on such sleeping-cars. If the taxes herein provided for are not paid, the comptroller-general shall issue executions against the owners of such ears, which may be levied by the sheriff of any county of this State upon the sleeping-car or cars of the owner who has failed to pay the taxes.”
The several code sections embody the statutory scheme for taxing cars of equipment companies whose cars are handled over the railroads in this State. Owing to the nature of the business, it is difficult to ascertain the number of cars of equipment companies that come into this State and designate the identity of each car or its value. The purpose of the statute is to provide a reasonable method for determining the fact that cars come into this State and the values thereof, to the end that the equipment companies allowing their cars to come into this State may bear their just proportion of taxes leviable in this State. The scheme of the statute is what is sometimes called the track-mileage basis of apportionment, or what in a more general way is termed the unit rule. The comptroller-general followed the statute. The unit rule has been upheld by the Supreme Court of the United States, in regard to railroads, telegraph companies, and sleeping-car companies. Kentucky Railroad Tax Cases, 115 U. S. 321 (6 Sup. Ct. 57, 29 L. ed. 414); Western Union Telegraph Co. v. Massachusetts, 125 U. S. 530 (8 Sup. Ct. 961, 31 L. ed. 790); Pullman’s Palace Car Co. v. Pennsylvania, 141 U. S. 18 (11 Sup. Ct. 876, 35 L. ed. 613). And this principle of average has been approved in regard to refrigerator-cars. American Refrigerator Transit Co. v. Hall, 174 U. S. 70 (19 Sup. Ct. 599, 43 L. ed. 899) ; Union Refrigerator Transit Co. v. Lynch, 177 U. S. 149 (20 Sup. Ct. 631, 44 L. ed. 708).
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Atkinson, J.
1. From what has been said, it is to be observed that the case relates to two matters, namely: a tax assessment against tangible property of the company; and second, a claim of right to assess a franchise tax. We will consider each in the order named above. While some of the expressions used in the agreed statement of facts, if taken alone and disassociated from the context, might have the appearance of conceding that the comptroller-general was seeking to tax property outside of the State, yet, when taken as a whole, it is evident that the parties did not intend any such concession. The effort was to tax property in this State, and in doing so to apply the statute designed as a rule to ascertain the property so coming into the State and its proper valuation. The correspondence between the officers of the tank company and the comptroller-general, set out in the statement of facts, formed a part of the petition for injunction, which is to be taken most strongly against the plaintiff. It referred in express terms to Civil Code § 990, and showed that both parties contemplated that the return which the comptroller-general was insisting upon was such as should be made under the requirement of the statute. It was contended by the plaintiff that the effect of carrying out the scheme of the statute would tax property out of.the State. The comptroller-general denied that such would be the effect, and proposed only to tax cars in pursuance of the statute. The attack made by the plaintiff, being upon this method of taxing, resolved itself merely into an attack upon the constitutionality of the statute. Whether it was unconstitutional was a question of construction and of law, which the parties would not yield in the pleadings or in the statement of facts. A construction of the latter as a concession by the comptroller-general that he was attempting to tax cars that had not come into the State would make the comptroller-general assume a right to do a thing for which he had never contended, and be outside of the real issue — the constitutionality of the scheme of the statute.
2. In determining as to the constitutionality of the scheme of the statute referred to, resort must be had to its provisions. The [770]*770statute is embodied in the Civil Code, § 990, which is as follows: “Any person or persons, copartnership, company or corporation wherever organized or incorporated, whose principal business is furnishing or leasing any kind of railroad cars except dining, buffet, chair, parlor, palace, or sleeping-cars, or in whom the legal title in any such cars is vested, but which are operated, or leased, or hired to be operated on any railroads in this State, shall be deemed an equipment company. Every such company shall be required to make returns to the comptroller-general under the same laws of force in reference to the rolling-stock owned by the railroads making returns in this State, and the assessment of taxes thereon shall be levied and the taxes collected in the same manner as provided in the case of sleeping-cars in section 989.” The last sentence of the foregoing excerpt, by referring thereto, makes as a part of the statute the laws “of force” in this State “in reference to the rolling stock owned by the railroads making returns in this State.” In the same manner it makes Civil Code § 989 a part of the statute. The only law which refers to taxation of “rolling-stock” of railroads paying taxes in this State is embodied in Civil Code § 1031, and is evidently the law on that subject referred to in section 990. Section 1031 is as follows: “Kailro'ad companies operating railroads lying partly in this State and partly in other States shall be taxed as to the rolling-stock thereof and other personal property appurtenant thereto, and which is not permanently located in any of the States through which said railroads pass, on so much of the whole valué of rolling-stock and personal property as is proportional to the length of the railroad in this State, without regard to the location of the head office of such railroad companies.” The other section (989) referred to in section 990 is as follows: “Each non-resident person or company whose sleeping-cars are run in this State shall be taxed as follows: Ascertain the whole number of miles of railroad over which such sleeping-cars are run, and ascertain the entire value of all sleeping-cars of such person or company, then tax such sleeping-cars at the regular tax rate imposed upon the property of this State in the same proportion to the entire value of such sleeping-cars that the length of lines in this State over which such ears are run bears to the length of lines of all railroads over which such sleeping-cars run. The returns shall be made to the comptroller-general by the president, general agent, [771]*771or person in control of such cars in this State. The comptroller-general shall frame such questions as will elicit the information sought, and answers thereto shall be made under oath. If the officers above referred to in the control of said sleeping-cars shall fail or refuse to answer, under oath, the questions so propounded, the comptroller-general shall obtain the information from such sources as he may, and he shall assess a double tax on such sleeping-cars. If the taxes herein provided for are not paid, the comptroller-general shall issue executions against the owners of such ears, which may be levied by the sheriff of any county of this State upon the sleeping-car or cars of the owner who has failed to pay the taxes.”
The several code sections embody the statutory scheme for taxing cars of equipment companies whose cars are handled over the railroads in this State. Owing to the nature of the business, it is difficult to ascertain the number of cars of equipment companies that come into this State and designate the identity of each car or its value. The purpose of the statute is to provide a reasonable method for determining the fact that cars come into this State and the values thereof, to the end that the equipment companies allowing their cars to come into this State may bear their just proportion of taxes leviable in this State. The scheme of the statute is what is sometimes called the track-mileage basis of apportionment, or what in a more general way is termed the unit rule. The comptroller-general followed the statute. The unit rule has been upheld by the Supreme Court of the United States, in regard to railroads, telegraph companies, and sleeping-car companies. Kentucky Railroad Tax Cases, 115 U. S. 321 (6 Sup. Ct. 57, 29 L. ed. 414); Western Union Telegraph Co. v. Massachusetts, 125 U. S. 530 (8 Sup. Ct. 961, 31 L. ed. 790); Pullman’s Palace Car Co. v. Pennsylvania, 141 U. S. 18 (11 Sup. Ct. 876, 35 L. ed. 613). And this principle of average has been approved in regard to refrigerator-cars. American Refrigerator Transit Co. v. Hall, 174 U. S. 70 (19 Sup. Ct. 599, 43 L. ed. 899) ; Union Refrigerator Transit Co. v. Lynch, 177 U. S. 149 (20 Sup. Ct. 631, 44 L. ed. 708). It has even been held that the unit rule of valuation could properly be applied to the valuation of property of express companies within a certain State, though there was no physical connection with property beyond the State. On this subject the Supreme Court of the [772]*772United States was divided as to the applicability of the rule to express companies, but the majority held that it was applicable. Adams Express Co. v. Ohio State Auditor, 165 U. S. 194 (17 Sup. Ct. 305, 41 L. ed. 683); Adams Express Co. v. Kentucky, 166 U. S. 171 (17 Sup. Ct. 527, 41 L. ed. 960). While in some of the decisions of that court it has been said that special circumstances might exist which would require a modification of the rule, such as the-existence of “terminal facilities of an enormous value” in one State and not in another, yet, in the opinion of the Chief Justice in Adams Express Co. v. Ohio State Auditor, supra, which was concurred in by a majority of the court, it was said (165 U. S. 227) : “Special circumstances might exist, as indicated in Pittsburgh, Cincinnati etc. Railway v. Backus, 154 U. S. 421, 443 [14 Sup. Ct. 1114, 38 L. ed. 1031], which would require the value of a portion of the property of an express company to be deducted from the value of its plant as expressed by the sum total of its stock and bonds, before any valuation of mileage could be properly arrived at; but the difficulty in the cases at bar is that there 'is no showing of any such separate and distinct property which should be deducted, and its existence is not to be assumed. It is for the companies to present any special circumstances which may exist, and, failing their doing so, the presumption is that all their property is directly devoted to their business, which being so, a fair distribution of its aggregate value would be upon the mileage basis.” We deem it proper to follow the decision of the majority. In the case-before us there is no contention that the tank company owns any terminals of great value outside of the State of Georgia, or any real estate so located, or that there is any property which is not employed in the business. The provision in section 1031, supra, that such company shall be taxed as to cars “ thereof and other personal property appurtenant thereto, and which is not permanently- located in any of the States through which said railroads pass,” negatives the intent to tax cars which do not come into this State. Any one of the cars.of the company might be brought into Georgia as required. These cars are not like wagons or automobiles, disconnected from a railroad, which may be carried to any point about the country. They necessarily travel over the tracks of railroads. One car may be called into service in this State as well as another. The company has 'an arrangement with railroads in this State to charge [773]*773them mileage for the use of their cars in hauling them over their tracks. It seems to us, therefore, that the case falls within the rule laid down by the Supreme Court of the United States, as above mentioned, and that there are no such circumstances as to bring it within the ruling made in Fargo v. Hart, 193 U. S. 490 (24 Sup. Ct. 498, 48 L. ed. 761), where it was held that “A State assessment upon an express company of another State, proportioned to mileage, is bad when it appears that the total valuation is made up principally from real and personal property, not necessarily used in the actual business of the company, and which is permanently located in the State where the company is incorporated.” It will be seen that the facts in that case are quite different from the one under consideration. If the unit rule can never be applied where the company has assets in more than one State, 'and where there is ’an inequality in the amount of such assets in proportion to mileage in the respective States, the rule might as well be declared abolished at once; because practically all large companies doing business in different States have a considerably larger amount of assets in one State than in another. It rarely, if ever, occurs that there is anything like an exact proportion between assets and mileage in the respective States where business is done. So that, to announce that the mileage rule is sound, and then to modify it to the extent of saying that it does not apply, or must be changed, whenever the company shows .'a disproportion of assets used in the business in different States, will in most cases be equivalent to abolishing it as a rule and making' it a mere circumstance for consideration by the assessing authorities.
Our statutes provide ample means for attacking the validity of a tax, or for arbitrating the valuation placed upon property by the comptroller-general. Civil Code, §§ 1045-1046, 1050-1054. Nor does the law providing for such an assessment of property of certain character, in order to determine its value, contravene the provision of the State constitution requiring taxes upon property to be uniform and ad valorem. Columbus Southern Railway Co. v. Wright, 89 Ga. 574 (15 S. E. 293).
3. Under the agreed statement of facts we do not think that the tank company is exercising any franchise in the State of Georgia which is taxable as such, as distinguished from the consideration of the unit or mileage rule in fixing the value of the property [774]*774within the State. It was agreed that the company had no agency in Georgia, conducted no business here, and exercised no franchise here, unless it did so under the following agreed facts: The company is incorporated in the State of New Jersey; it has offices in New York; it rents tank-ears to the Standard Oil Company, a Kentucky corporation. The agreements and settlements are made outside of this State. The cars are furnished for use by the Standard Oil Company; and the railroad company, in lieu of providing tank-cars, pays to the tank company % of a cent per mile for hauling each car. The Standard Oil Company brings U large amount of oil to Jacksonville, Florida, and Savannah, Georgia, mainly by marine transportation. From these points oil is sent out by means of the tank-cars to different places in the interior. A number of these cars come into Georgia and are used there and elsewhere.
Under such facts, we are unable to see what special franchise the company exercises under any grant from this State. It is at least doubtful whether the tax authorities of Georgia could tax a franchise, strictly so called, which was granted by another State, as distinguished from intangible property. We hold, therefore, that, while the purpose of the cars for use may be considered in determining the value of those in Georgia, the company does not exercise in this State any such franchise as can be separately taxed. It is true that section 990 of the Civil Code uses broad language in defining equipment companies; - and that if that language be construed in connection with section 1019, it may be argued with some force that the tank company came within the purview of those sections. But, in the light of the agreed statement.of facts above mentioned, we think it is excluded from the operation thereof.
Judgment affirmed in part and reversed in pari.
All the Justices concur, except