State v. American Refrigerator Transit Co.

Hart, J. (after stating the facts). As above stated, this suit is based upon §§ 9823-30 of Crawford & Moses’ Digest, providing a method for the assessment and collection of an exercise or privilege tax on private cars doing business in this State. Under the provisions of the act, the State can' not collect an excise or privilege tax unless the private car companies are doing business within the State during the period of time for which it is sought to assess and collect the privilege tax. The defendant company is a private car company created by the laws of the State of New Jersey, with its principal office in the city of St. Louis, Mo. It owns the cars sought to be taxed. It made a contract in St. Louis, Mo., with the railroad companies operating out of said city for the use of its cars at one cent for each mile traveled by the cars over the lines of the railroad companies. The routes are at the will of the railroad companies, and the defendant has nothing to do with the transportation of the freight hauled in its cars. The cars pass through the State both ways, hauling freight, or go from a point in the State to a point without the State or come from a point Without the State to a point within the State. It is the contention of counsel for the State that the act was intended to tax as a privilege the using of cars for profit by the owner other than the railroad company which may he actually running them. The act in express terms provides for the payment of a privilege tax to be computed by taking 5 per cent, of the amount fixed by the Tax Commission as the gross receipts of the private car companies for business done by them within the ■State. That such a tax is constitutional, see Wallace v. Hines, 253 U. S. 66, and cases cited. The act by its terms only intends to tax a percentage of the gross receipts of private car companies doing business in this State. Under the facts just related, we are of the opinion that the defendant company was not doing business in the State within the period of time during which the State has sought to assess and collect a privilege tax from it. It therefore does not come within the provisions of the act; .and it is not required to pay the excise or privilege tax imposed by its terms. In this respect the case is ruled by Pickard v. Pullman Southern Car Co., 117 U. S. 34. In that case the court held that a statute of Tennessee which imposed a privilege tax of $50 per annum on every sleeping car used or run over a railroad in Tennessee, and not owned by the railroad on which it was run or used, was void so far as it applied to the interstate transportation of passengers carried over railroads in Tennessee, into or out of or across that State, in sleeping cars owned by a corporation of Kentucky and leased by it for transportation purposes to Tennessee railroad corporations, the latter receiving the transit fare, and the former the compensation for the sleeping accommodations. There, as here, the private car company had no branch office or establishment of any kind in the State for the transaction of business. Its cars were operated under its contracts with the railroad companies made outside of the State. The cars furnished to the railroad companies under its contracts constituted all the property owned by it in the State, and the private car company in that case was not doing any business in the State unless the operation of its cars by the railroads constituted doing business. In discussing the question in Pickard v. Pullman Southern Car Co., supra, the court said: “The car was equally a vehicle of transit, as if it had been a car owned by the railroad company, and the special conveniences or comforts furnished to the passenger had been furnished by the railroad company itself. As such vehicle of transit, the car, so far as it was engaged in interstate commerce, was not taxable by the State of Tennessee, because the plaintiff had no domicile in Tennessee, and was not subject to its jurisdiction for purposes of taxation; and the cars had no situs within the State for purposes of taxation; and the plaintiff carried on no business within the State, in the sense in which the carrying on of business in a State is taxable by way of license or privilege. ’ ’ It will be noted that the court in that, case under a state of facts in all essential respects similar to the facts in the present case, said in plain terms that the private ear company in that case had carried on no business within the State in the sense in which the carrying on of business in a State is taxable as a privilege. Thus it will be seen that the precise question involved in this appeal was determined adversely to the contention of the State in that case. The principles of law decided in that case have never been overruled by the Supreme Court of the United States and govern the present case. The cases of Fargo v. Hart, 193 U. S. 490, and American Refrigerator Transit Co. v. Hall, 174 U. S. 70, and other cases of like character relied upon by counsel for the State, have no application under the facts presented by the record. Those cases deal with the liability of foreign corporations for a property tax. Under the principles of law announced in those cases the defendant in the present case would be liable for a property tax on its cars on the theory that the situs of its cars for the purpose of taxation is in the State of Arkansas. It is liable for a property tax on its cars, not because it is doing business in this State, but because the situs of its oars for the purpose of taxation is here. It would have to pay a property tax, just as other persons or corporations must pay such a tax, regardless of the fact whether they did any business here or elsewhere. Such a tax is not levied for the privilege of doing business in the State, but because the property has .its situs for taxation here. The general rule is that a State cannot impose a tax on the property of a foreign corporation which has never been brought within its borders. When, however, movable property is regularly and habitually used in a State, it may be taxed according to its value, and tlie valuation need not be limited to the mere worth of the tangible property itself, but the State may look to the property of the corporation beyond its borders to arrive at the true value of the property within the State. Such a property tax is provided for in §§ 1001-8 of Craw- ’ ford & Moses’ Digest, (act 224 of Acts 1915); and the agreed statement of facts shows that this tax has been paid by the defendant in the instant case. We are of the opinion that the defendant was not doing business in this State during the years mentioned in the complaint, and therefore was not liable for the privilege tax imposed by statute on private car companies doing business in this State. It is true that the chancery court rendered judgment against the defendant for the sum of $17.80, but this Was done because the defendant made a tender of this amount to th'e plaintiff, and not because the court found- that there was anything in the record tending to show that the defendant was doing business in this State within the period of time designated in the complaint. On the contrary, the chancellor was of the opinion that neither the pleadings nor the evidence showed that the defendant was doing business in the State of Arkansas, and we think that the chancellor was correct in reaching that conclusion. It follows that the decree will be affirmed.