Johnson v. DeBary-Baya Merchants' Line

Mabry, C. J.: The bill in this case is prolix, and not as precise as it might have been. After exceptions were sustained to parts of the first answer interposed, an amended answer was filed to the entire bill, and the first one might be considered as abandoned and entirely out of the case. As the case was disposed of on the pleadings, and our conclusion is the same whether the second answer as amended be considered alone, or in connection with the first one, we have-filed- herewith a full statement of the entire pleadings in the case. Prom an examination of this statement it will be found that the following facts may be conceded to be true, viz: Appellee was a corporation existing under the laws of New York, with its headquarters and chief office in the city and State of New York, and since the year 1883 to the filing of the bill in August, 1891, had been the owner of certain named vessels of over twenty tons burden, and at the time of filing the bill owned four of the vessels; that all of said vessels were duly registered in the custom house in the city of New York and State of New York, and said city was their home port; that in compliance with the act of Congress, the name of each vessel had been painted on its stern upon a black ground in white letters, and the name of the city of New York and State of New York given as the home port; that appellee had regularly returned the valuation of its property, including said vessels, to the proper authorities of the State, county and city of New York, and had regularly submitted all information required by said authorities to enable them to assess and collect the taxes against said property. The statement in the tenth paragraph of the bill, that ap — 512 — pellee had in fact paid taxes on said.vessels to the New York'authorities since the year 1883, was denied in the original answer, but the amended answer states that said paragraph was purely an argument and could not be answered. It is also conceded that for a period of time anterior to the filing of the bill, appellee sent said boats to the St. Johns river in this State and maintained a line of steamers between Jacksonville and Sanford for a part of each year, and for some years for the entire year, and engaged them in the usual traffic business incident to steamboats plying upon a river. The original answer admits the statements in the fifth paragraph of the bill, and the amended answer, after admitting that the steamer Fred. DeBary plied in the waters of this State as alleged, submits that the other averments therein were irrelevant. From the admissions made in this respect it appears that it was the custom and practice of appellee to send its boats át different times to such waters as afforded profitable engagements. From the allegations in the sixth paragraph of the bill, not denied, it is conceded that since the 15th of November, 1889, four of the boats mentioned, except two during the summer and part of the fall months, when they were upon waters in other States, formed a connection with a foreign corporation engaged in interstate commerce, and constituted an integral part of an all water route between New York and Jacksonville and Sanford in this State. It is also-conceded that prior to November, 1889, the other boats of appellee were destroyed by fire, or worn out and abandoned. Two of the boats owned by appellee at the time of filing the bill had been sent to waters of other States to engage in business, but, as alleged by the original — 513 — answer, they had returned after the filing of the bill to engage in business in Florida waters. There is no denial of the allegations in paragraph 7a, that the-boats being owned in New York, had not become so blended with the commerce and business of the State of Florida as to make them taxable in this State, and that their status, obtained by reason of their non-resident ownership and registry in the New York custom house, under the act of Congress, had not been changed. The -answer denies, however, that appellant seized the boat in question for the alleged taxes in violation of the laws of the United States, or of the State of Florida. In the case of Minturn vs. Hays, 2 Cal. 590, S. C. 56 Am. Dec. 366, decided in 1852, it appeared that a steamboat built in New York by owners resident there was employed from June, 1850, to the time of the suit in carrying passengers and freight between Sacremento City and San Francisco, in California. It was alleged that the owners of the boat paid taxes on her in the State of New York, but there was no showing as to her registry anywhere. The California court held that the boat was subject to taxation in that jurisdiction. The Alabama court, in the case of Battle vs. Mobile, 9 Ala. 234, S. C. 44 Am. Dec. 438, held a vessel subject to taxation by the city authorities of Mobile under the following conditions: A resident citizen of the State of Pennsylvania owned an interest in several steamboats that ran on rivers in the State of Alabama, and the boats were regularly licensed under the laws of the United States, and registered at the custom house in the city of Mobile in pursuance of the act of Congress. The city of Mobile in pursuance of an act of the Leg — 514 — islature assessed taxes on said vessels for the current year 1844-5, and the boats had, since the first day of December, 1844, and until the assessment, regularly plied on the Alabama river between Mobile and Montgomery, carrying freight and passengers, and they were in the city of Mobile when the assessment was made. It also appeared that the non-resident owner paid taxes on his interest in the boats in Pennsylvania, and that they returned to that State after the boating season was over in Alabama, and plied on the Ohio and Mississippi rivers. The non-resident in this case had only an interest in the boats, and they were duly registered in the port of Mobile. In Mayor vs. Baldwin, 57 Ala. 61, it was determined that a ferry-boat-plying daily between the eastern shore of Mobile bay and the city of Mobile, and returning each night to the eastern shore where the owner resided, and from which it commenced its daily trips, was not liable to taxation by the corporate authorities of the city. While announcing the rule that the non-residence of the owner of a vessel prima facie relieved it of taxation, it was held that actual citus, and not the domicile of the owner was the material inquiry in ascertaining the liability of personal property to taxation. The right to tax in this case arose under a statute giving the city of Mobile the authority to tax itinerant or transient vessels remaining in the corporation less than one year. In the case of National Dredging Co. vs. State, 99 Ala. 462, 12 South. Rep. 720, the same rule was announced as in Mayor vs. Baldwin. The business of the National Dredging Co. was the operation of machines and appliances for the improvement of rivers, harbors, channels, docks, wraler courses, low lands, etc.), and in the fall or early winter of 1890 the company entered — 515 — into a contract with the United States for continuing the work'of dredging the channel of Mobile bay and entered upon the execution thereof early in 1891. After the first day of January, 1891, and before the county assessor had completed his assessment, the company brought into the State certain property, including a dredge-boat, a tug-boat and five mud scows, which remained up to July, 1892. The contract with the government had not been completed on the last mentioned date, but would occur shortly thereafter; and after its completion the company would have no further use for the property in Alabama. The tugboat, dredge and scows were floating property capable of being moved from port to port, and the tug was registered in the custom house at Wilmington, Delaware, the residence of the corporation owner. Some time in May, 1891, the assessor of Mobile county placed upon the tax books the tug, dredges and scows, and the court held that they were subject to taxation. It was said that it wms clear “that all of this property was at the time of the assessment being used in the State of Alabama in the prosecution of works wholly within the State, under a contract which involved its presence here in that work for a time, the duration of which was indefinite, but which extended beyond a year and a half, and the end of which, even from the standpoint of the latter date, could not be more definitely fixed than as shortly to occur. During all this time and possibly to the present moment, the property has been ■wholly within Alabama, engaged in a business or being used in a work wTkich did not involve its passing-even temporarily beyond the limits of the State.” The court further said that “there are many cases which hold that such vessels (speaking of the registered tug — 516 — boat) engaged in commerce between its borne port and others, or even wholly between other ports than that of its registry, can be taxed only at the port of registry. It is not our purpose to question these decisions;, it is not necessary that we should. They all proceed upon the theory that vessels thus engaged are never in-foreign jurisdiction except temporarily, and as an incident to the commerce to which they are devoted, and hence that they do not and can not acquire a situs in foreign ports for the purpose of taxation; they do not' become incorporated with the property of other States- and counties which they touch intermittently, are-never indefinitely there, and their business, the work they perform, the uses to which they are put, is not done and performed within, and are not local to, the-foreign State or county.” In Hays vs. Pacific Mail Steamship Co., 17 How. 596, after referring to the acts-of Congress regulating the registry of vessels and the-record of bills of sale, mortgages and conveyances in-reference thereto, it was held that the domicile of a vessel was the port at which, she is registered, and which must be the nearest to the place where the owner or owners reside. It was said: “Whether the vessel,, leaving her home port for trade and commerce, visits,, in the course of her voyage or business, several ports,, or confines her operations in the carrying trade to one, are questions that will depend upon the profitable returns of the business, and will furnish no more evidence that she has become a part of the personal property within the State, and liable to taxation at one-port than at another. She is within the jurisdiction of all or any one of them temporarily, and for a purpose wholly excluding the idea of permanently abiding in the State or changing her home port. Our mer — 517 — chant vessels are not unfrequently absent for years, in the foreign carrying trade, seeking cargo, carrying and unloading it from port to port, during all the time absent, but they neither lose their national character nor their home port, as inscribed upon their stern.” The facts in the case of Morgan vs. Parham, 16 Wall. 471; were, that a resident citizen of New York, owning a vessel duly registered in the port of New York, with her name and port painted upon her stern, as required by the act of Congress, sent her in 1865 to ply between the waters of Mobile, Alabama, and New Orleans, Louisiana, and from that time until 1870 she was employed as a coasting steamer between said cities. In January, 1867, the vessel was regularly enrolled at the custom house in Mobile by her master, and her license •as a coasting vessel was renewed in the years 1868 and 1869. During this term the captain of the vessel had been a resident of Mobile, and the agent conducting the business of the vessel occupied an office here, but-was under a superior agent residing in New Orleans who paid the captain and other officers of the vessel. A wharf and office in Mobile were occupied for the use of the vessel. She was engaged with other vessels in transporting mails, freight and passengers between Mobile and New Orleans, and the business was extensive and profitable. The vessel was assessed in 1866 and 1867 as personal property fin the city of Mobile, belonging to the non-resident, and the taxes remaining unpaid the boat was seized by the collector of the city of Mobile. The court held that the vessel was not subject to taxation in Mobile, and was only liable in New York, her home port. A distinction was made between the enrollment and registration of a vessel, and the enrollment of the boat in question in the port — 518 — of Mobile did not indicate a change of her domicile. It was stated by the court thát the physical presence' of the vessel in Mobile when the taxes were assessed did not decide the question, and that the vessel being owned by and employed in the service of a resident of New York, was primarily and presumptively taxable under the authority of that State and of that State only. The view announced in Hays vs. Pacific Mail Steamship Co., supra, was approved, and it was said it was not important whether the owner in fact paid taxes on the vessel in New York during the years for which she was taxed in Alabama. Federal jurisdiction over the case was also asserted. The decisions in St. Louis vs. Ferry Co., 11 Wall. 423, and Transportation Co. vs. Wheeling, 99 U. S. 273, are not opposed to the Federal decisions to which reference has been made. Undoubtedly the vessels of appellee were subject to taxation in New York under the decisions of that State. People ex rel. Pacific Mail Steamship Co. vs. Commissioners of Taxes, 58 N. Y. 242. It is here held that the situs of a sea-going vessel for the purpose of taxation is the port where she is registered under the laws of the United States as her home port, and that such situs was not lost by mere absence and employment elsewhere, but continues until a new one is acquired. In Roberts vs. Township of Charlevoix, 60 Mich. 197, 26 N. W. Rep. 878, it was held that a vessel registered. under the United States navigation laws, and owned by a non-resident of Michigan, was not subject to the taxing power of that State by reason of engaging in business therein. Judge Campbell speaking for the court, after stating the doctrine of the Federal courts, that a registered vessel under the United States navigation laws does not, by engaging — 519 — in business within a State, become subject to its taxing power, if the owner be a non-resident, dismisses the subject with the statement that “this doctrine having been settled by the court of last resort, there would be no propriety in discussing it.” Under the admitted facts of this case we are of the opinion that the vessels of appellee were not subject to taxation in Duval county. The vessels were owned by a New York corporation, and had acquired a situs in that State by being duly registered in the port of New York, the nearest to the residence of the owner, and were engaged in commerce in that State where, it is conceded the most profitable employment' could be procured for them. The mere fact of being employed in interstate commerce, would not exempt them from taxation, and we do not say that registration in a foreign port and non-resident ownership should control absolutely, but such ownership and registration render them primarily and presumptively taxable only in their home port. This is clearly the doctrine of the Supreme Court of the United States—the court of last resort in such a case. The boats of the non-resident corporation were used in the very business for which they were constructed, and they were in Florida waters because they could be more profitably employed here. Some of them were transferred to other fields as profit dictated, and it does not appear that they all might not have been taken away at any time if it had been to the interest of the owner to move them. It appears that several of the boats had been destroyed during the jjeriods for which taxes were assessed or attempted to be assessed on them, but under the rule announced in the Federal court, all of them, on the conceded facts, were primarily and presump — 520 — tively taxable only in New York. If it be conceded, under the allegation of the first answer, that the taxes on the boats had not been paid in New York, they were assessed there, and were only liable to be taxed in that jurisdiction. The answer does not even directly deny the allegation that the boats had not become so blended with the property of this State as to become subject to taxation in our jurisdiction. All property should in justice pay its proportionate part of tax burdens in return for protection given; but one State should not lay taxes upon citizens of other States, unless their property has acquired a situs in the taxing locality so as to become a part of the property there situated. If every State into which vessels entered in their regular employment laid taxes upon them, such property would be subject to more than double taxation. The character of such property is such as to give rise to the just rule under the United States registry acts, that it is primarily taxable only at the home port where the owner resides. The only other point to which reference need be made is the j urisdiction of the court to enjoin the sale of the boat seized. On the allegations of the bill we are of the opinion that the court did have jurisdiction. The threatened injury was of such a nature as to render it irreparable, and the case does not come within the principle of the decisions of Odlin vs. Woodruff, 31 Fla. 160, 12 South. Rep. 227, and Baldwin vs. Tucker, 16 Fla. 258. The decree of the chancellor should be affirmed, and it is so ordered.