Champlain Realty Co. v. Town of Brattleboro

• Decision Date: 07 May 1921
• Docket Number: 300
• Citation: 113 A. 806,95 Vt. 216
• Parties: CHAMPLAIN REALTY COMPANY v. TOWN OF BRATTLEBORO
• Court: Vermont Supreme Court

113 A. 806

95 Vt. 216

CHAMPLAIN REALTY COMPANY v. TOWN OF BRATTLEBORO

No. 300

Supreme Court of Vermont

May 7, 1921

Special Term at Brattleboro, February, 1921. Opinion filed May, 1921.

ACTION OF CONTRACT to recover taxes paid under protest. Trial by Court at the April Term, 1920, Windham County, Stanton, J presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment reversed, and judgment for the defendant.

Arthur P. Carpenter and Ernest W. Gibson for the defendant.

Harvey Maurice, Whitney & Fitts for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

TAYLOR

In this action the plaintiff seeks to recover taxes paid under protest. The plaintiff is a corporation organized under the laws of New York, but at all times material to this inquiry duly authorized to do business in this State. It was listed for taxation in the defendant town in the year 1919 in part on account of certain property on which the taxes were paid without objection. The dispute arose over 1,500 cords of pulpwood which was appraised and set in the list at $ 30,000. The plaintiff filed a tax inventory of its property in Brattleboro on April 1, 1919, wherein it specified that it was the owner of 1,500 cords of pulpwood situated in the town of Brattleboro on the West River and its banks, but claimed that the same was not taxable as it was in transit in interstate commerce. The various taxes payable to the defendant town, assessed on so much of the plaintiff's list as related to this pulp aggregated $ 485.50. These taxes were paid under protest, and this action immediately brought for their recovery. The cause was tried by court, and on the facts found judgment was rendered for the plaintiff. It is here for review on defendant's exceptions, which include an exception to the judgment.

The only objection to the validity of the tax was and is that the pulpwood for which the plaintiff was taxed was on April 1, 1919, in transit in interstate commerce, and so outside the taxing power of the State. As bearing upon this question the court found the following facts: During the winter of 1918-19, the plaintiff cut pulpwood, in all about 10,000 cords, in the towns of Jamaica, Stratton, Londonderry, and Winhall in this State. The plaintiff maintains a mill at Hinsdale, in the state of New Hampshire, about three miles below Brattleboro, where its pulpwood is rossed and bolted. The wood, cut four feet long, was placed upon the banks of West River and its tributaries to be floated down into the Connecticut and thence to its destination at the mill in Hinsdale. The waters of the West River are wholly in this State and empty in the town of Brattleboro into the Connecticut. West River and its tributaries had been used for driving pulpwood to the mill at Hinsdale in the years 1917 and 1918. A single log boom is provided at the mill to receive the wood floated down the river, but is incapable of holding it all when the water in the Connecticut is high and the current swift, and the wood is liable to be carried over and drawn under the boom and lost. A pond of considerable size is formed near the mouth of West River in the town of Brattleboro by water set back from the Connecticut by the dam at Vernon. Plaintiff maintains a boom at this point to hold and control the logs driven down West River until the water in the Connecticut has receded sufficiently to permit of their being held in the boom at Hinsdale.

On March 25, 1919, the plaintiff began putting the pulpwood into the West River and its tributaries, the water in these streams then being high, intending to drive it down the river and thence into the Connecticut and down that river to its mills in Hinsdale. In anticipation of the probable high water in the Connecticut, plaintiff had previously placed its boom across West River near its mouth to hold the wood there until the water in the Connecticut had receded enough to allow it to be held at the mill at Hinsdale. The wood floated down West River on the high water, and the head of the drive reached the boom at the mouth of West River on March 27, 1919. At that time the Connecticut was so high and its current so swift that it was not thought safe to let the wood into that river, as it could not be held at the Hinsdale boom. For this reason and no other the plaintiff held its wood in the boom at Brattleboro. The Connecticut was not suitable for driving pulpwood from the time the drive began until April 3, on which date the plaintiff's servants cut the boom at the mouth of West River so that the wood could pass into the Connecticut. Prior to April 3 only about 4,000 cords of the wood had reached and been held at the West River boom. The balance arriving later went through to Hinsdale without stopping. On March 28, 1919, when there was by estimation about 4,000 cords of wood in the West River boom, it broke, allowing some of the wood to escape into the Connecticut and onto the Retreat meadow in Brattleboro near the mouth of West River. The boom was repaired on March 29, 1919. At this time the part of West River where the wood laid back of the boom, called the holding ground, was frozen, so the wood, if not boomed, could not have continued on its journey into the Connecticut at that time. On April 1, 1919, about 1,500 cords of the pulpwood were being held in plaintiff's boom at the month of West River. Some wood that was lodged on an island and the wood on the Retreat meadow remained after the boom was cut. The latter remained on the meadow about two weeks and had to be taken out by a process called "booming" or "warping" None of this 1,500 cords was cut in the town of Brattleboro. All of it had been carried down West River and was destined for the plaintiff's mill at Hinsdale, New Hampshire, by way of the Connecticut. The drive of pulpwood down West River to the Connecticut and thence to the rossing plant at Hinsdale was in continuous operation from March 25 until it was completed on May 9, and was conducted properly to make an uninterrupted passage, so far as possible.

No question is made but that the pulpwood on account of which the plaintiff was taxed, viz., the 1,500 cords of wood held in the boom on April 1, 1919, was taxable in the defendant town unless within the protection afforded by the commerce clause of the Federal Constitution. The parties do not disagree as to the general rule governing this class of cases. Products of a state intended for exportation to another state do not cease to be a part of the general mass of property in the state, subject as such to its jurisdiction and to taxation in the usual way, until they have been shipped or entered with a common carrier for transportation to another state, or have been started upon such transportation in a continuous route or journey, or, as otherwise stated, until they have entered upon their final journey, out of the state. Coe v. Errol, 116 U.S. 517, 525, 29 L.Ed. 715, 719, 6 S.Ct. 475; Diamond Match Co. v. Village of Ontonagon, 188 U.S. 82, 47 L.Ed. 394, 23 S.Ct. 266. As frequently happens, the difficulty in this case arises in the application of the settled rule to the facts found. Here the wood was being transported by the plaintiff, its owner, and was subject at all times to its complete control, so the rule laid down when the transportation is by a common carrier does not apply. It is not a case where goods from outside the state are detained in transit within the state. Such goods are already under the protection of the Constitution when they cross the border and are subject to a different rule. Coe v. Errol, supra. Applied to products of the state intended for exportation, the precise question is when they acquire the impress of interstate commerce.

It is well to note at the outset that, this being an action to recover money paid as a tax, the burden is upon the plaintiff to show that the tax was illegally assessed, or, to be specific, to establish the interstate character of the transportation. Sullivan v. Ashfield, 227 Mass. 24, 116 N.E. 565; Forsyth v. County Comm'rs (Mass.), 123 N.E. 699; Jackson v. Town of Union, 82 Conn. 266, 73 A. 773; Warwick & Coventry Water Co. v. Carr, 24 R.I. 226, 52 A. 1030; Portland, etc., R. Co. v. City of Saco, 60 Me. 196; Savings & Loan Co. v. City of San Francisco, 146 Cal. 673, 80 P. 1086; Iron Co. v. Township of Wakefield, 186 Mich. 626, 153 N.W. 14; Heuston v. King County, 90 Wash. 200, 155 P. 773; Hardward Co. v. La Plata County, 52 Colo. 260, 121 P. 157; Davis v. Otoe Co., 55 Neb. 677, 76 N.W. 465. See Babcock v. Granville, 44 Vt. 325; City of St. Louis v. Niehaus, 236 Mo. 8, 139 S.W. 450.

We have no cause in point. The defendant relies upon Guilford v. Smith, 30 Vt. 49, but the decision in that case sheds no light on the question at issue here. That was an action in replevin and involved the right of stoppage in transitu where flour shipped by the vendor from a point in Canada, consigned to parties in Ogdensburg, N.Y., to be forwarded to the vendee in Burlington, Vt., was held in storage at Ogdensburg awaiting forwarding orders. It was held in the circumstances, which we need not detail, that the vendee had acquired constructive possession of the flour, and that the transit was at an end, as the flour had reached a place where it awaited a fresh direction to be given to it by the vendee, and so was not being held to transport, but to keep, when the vendor attempted to exercise the right of stoppage.

As the case presents a Federal question, it is controlled by principles to be found in the decisions of the Supreme Court of the United States. There are three distinct classes of decisions fixing the limits of state and Federal authority when the question of interstate...