City of Portland v. New England Tel. & Tel. Co.

• Decision Date: 06 December 1907
• Citation: 103 Me. 240,68 A. 1040
• Parties: CITY OF PORTLAND v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.
• Court: Maine Supreme Court

68 A. 1040

103 Me. 240

CITY OF PORTLAND

v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.

Supreme Judicial Court of Maine.

Dec. 6, 1907.

Report from Superior Court, Cumberland County.

Debt by the city of Portland against the New England Telephone & Telegraph Company. Case reported to the law court. Judgment for defendant.

Action of debt brought in the sup prior court, Cumberland county, to recover the sum of $1,484 for taxes assessed by the plaintiff city against the defendant company, a corporation, for the year 1906. Said tax was assessed on the conduits of the defendant company in the plaintiff city as real estate, and was in addition to the excise tax assessed upon the defendant company by the state assessors under the provisions of Rev. St. c. 8, §§ 35-41.

The cause came on for hearing at the April term, 1907, of said superior court, at which time an agreed statement of facts was filed, and the case was sent to the law court with the following stipulations:

"Upon the foregoing statement of facts the court is to render such judgment as the rights of the parties require, and, if the court decides that said conduits were real estate and were taxable as such by said plaintiff city, judgment is to be rendered for the plaintiff city for the sum of $1,484, with interest from the date of the writ. If said conduits were not real estate and were not taxable as such by said plaintiff city, judgment shall be rendered for defendant corporation."

The only question presented to the law court was whether or not the conduits of the defendant company were legally taxable as real estate by the plaintiff city.

All the material facts are stated in the opinion.

Argued before EMERY, C. J., and WHITEHOUSE, STROUT, PEABODY, SPEAR, and KING, JJ.

Michael T. O'Brien, City Sol., for plaintiff. Payson & Virgin, for defendant.

WHITEHOUSE, J. This is an action of debt to recover the sum of $1,484 for taxes assessed by the plaintiff city against the defendant corporation for the year 1906. The case conies to this court upon agreed statement of facts. It is admitted that the defendant is a legally organized corporation authorized by Priv. & Sp. Laws 1885, p. 701, c. 513, to do business in this state, and that during the year 1906 it was carrying on a telephone business in the plaintiff city and throughout the state. The tax in question was assessed upon the conduits of the company as real estate, and was in addition to an excise tax assessed by the state assessors upon the defendant corporation by virtue of sections 35 to 41, inclusive, of chapter 8 of the Revised Statutes.

The conduits in question were iron and earthenware tubes or pipes laid under the surface of the streets, with branch pipes running to poles set along the sides of the streets and the buildings on the streets, through which wires were run for the purpose of connecting the telephones in the central office of the defendant corporation, with telephones in the buildings of their subscribers and patrons.

These conduits were laid in the streets of Portland under the authority of section 1, c. 204, p. 313, Priv. & Sp. Laws 1891, and by virtue of licenses therefor granted to the defendant corporation by the municipal officers of the city of Portland, under rules and regulations established by them. Section 1, c. 204, p. 313, Priv. & Sp. Laws 1891, reads as follows: "The New England Telephone and Telegraph Company may have the right to place its wires and cables under the surface of streets in the cities of Portland and Lewiston, with the permission and under the supervision of the municipal officers and subject to such rules and regulations as they may from time to time impose, and for that purpose may, when authorized by the board of mayor and aldermen of said cities, construct and maintain its cables, wires, conduits and manholes in any public way or street designated in such grant of authority."

Section 1 of the rules and regulations established by the municipal officers of Portland provides that these conduits shall be constructed and maintained "in accordance with the regulations hereinafter provided, and subject to existing ordinances and such rules and regulations in addition to, or in amendment thereof, as may hereafter be passed."

It is further provided by section 9 of these regulations that the defendant company "shall remove its conduits to other suitable locations whenever ordered to do so by the board of mayor and aldermen," and by article 5 of section 10 that the company "will at once comply with any charges in its conduits, manholes or poles that the board of mayor and aldermen may after hearing duly appointed, order." And section 11 is as follows:

"Any authority granted by said board of mayor and aldermen may, after notice and hearing, be revoked or altered at any time without liability on the part of the city therefor; but in case any location in any street shall be revoked, a substitute location in some other street, that will in the opinion of the said board accommodate the service, shall be granted."

Sections 36 and 41 of chapter 8 of the Revised Statutes prescribes the method of taxing telephone companies in this state, as follows:

"Every corporation, association or person operating in whole or in part a telephone or telegraph line within the state for tolls or other compensation, shall pay to the treasurer of State for the use of the state an annual excise tax for the privilege of conducting such business within the state, which tax, with the tax provided for in section forty-one, is in place of all taxes upon the property of such corporation, association or person employed in such business, and of all taxes upon the shares of the capital stock of any such corporation."

"The excise tax collected under the six preceeding sections shall be in lieu of all taxes upon any corporation therein designated upon its shares of capital stock and its property used in the conduct of its telephone or telegraph business, including the poles, wires, insulators, office furniture, batteries, instruments, telegraphic and telephonic apparatus, telephones and transmitters used under lease or license or owned by such corporation, association or person; provided, however, that the real estate and also personal property not hereinabove exempted, owned by such corporation, association or person shall be taxed in the municipality in which the same is situated; but the amount of the tax assessed upon such real estate if owned and actually used by such corporation, association or person in the transaction of their business, shall be deducted by the board of state assessors from the tax laid hereunder. The assessment of taxes on such real estate shall be legal, whether assessed as resident or nonresident property."

Thus it appears that the only question to be determined by the court is whether the conduits of the defendant corporation were legally taxed as real estate by the city of Portland. The defendant contends that these conduits are not real estate, and cannot, therefore, be legally taxed as such by the city.

The intention with which an article is annexed to the freehold has come to be recognized as the cardinal rule and most important criterion by which to determine its character as a fixture, and the attendant facts and circumstances are chiefly valuable as evidence of such intention. "This controlling intention is not the initial intention at the time of procuring the article in question, nor the secret intention with which it is affixed, but the intention which the law deduces from all the circumstances of the annexation. * * * If the annexation is not intended to be permanent, the chattel will not be deemed a fixture." 19 Cyc. pp. 1046, 1047, and cases cited. In accordance with this view was the decision of this court in Telephone Co. v. Cyr, 95 Me. 287, 49 Atl. 1047; and the principles enunciated in that case are invoked by the defendant company as decisive of the case at bar. The question involved in that case was whether the telephone line of the company, consisting of poles, wires, and insulators, was personal property as between debtor and creditor at the time of its seizure and sale on execution, and it was held by the court in that case that from such external facts as the nature of the...