Commonwealth v. Southern P. Co.

• Decision Date: 19 June 1909
• Citation: Commonwealth v. Southern P. Co., 120 S.W. 311 (Ky. Ct. App. 1909)
• Parties: COMMONWEALTH v. SOUTHERN PAC. CO.
• Court: Kentucky Court of Appeals

120 S.W. 311

COMMONWEALTH v. SOUTHERN PAC. CO.

Court of Appeals of Kentucky.

June 19, 1909

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

"To be officially reported."

M. J Holt and Jos. Selligman, for the Commonwealth.

Humphrey Davie & Humphrey, for appellee.

HOBSON J.

The Southern Pacific Company was incorporated by an act of the General Assembly of Kentucky approved March 17, 1884 (Acts 1883-84, p. 725, c. 403). Its principal office is maintained at Beachmont, in Jefferson county, Ky. near Louisville. It operates an extensive system of railroads and also a line of steamships between New York and New Orleans and Galveston. The particulars of these matters are more fully stated in the opinion this day filed in the case of Southern Pacific Company v. Commonwealth of Kentucky, 120 S.W. 309. This suit was brought by an auditor's agent in the Jefferson county court in the name of the commonwealth against the company under section 4241, Ky. St. (Russell's St. § 6170), for the assessment of property omitted from assessment by it for the years 1907 and 1908. The county court on a hearing of the case dismissed the petition as to everything but the steamships; but entered a judgment assessing them for taxation. The company appealed to the circuit court, and there a judgment was entered dismissing the petition absolutely. From that judgment the appeal before us is prosecuted.

The ships are enrolled or licensed from the port of New York, and they ply between New York and New Orleans or New York and Galveston. The question to be determined is: Are these steamships taxable at the domicile of their owner at Beachmont in Jefferson county? They are tangible personal property, and therefore should have been assessed by the assessor of Jefferson county if they are taxable there. The ships, in fact, have never been in Kentucky, and under ordinary circumstances cannot come to Beachmont. Yet it is the domicile of their owner, and, if they are taxable at the domicile of their owner, they may be taxed in Jefferson county. In Hays v. Pacific Mail Co., 17 How. 596, 15 L.Ed. 254, the Pacific Mail Company was incorporated by the laws of New York. Its principal place of business was in New York. All of the vessels were registered in New York, the residence of the owner. It was held that these ships although plying in the Pacific, acquired no situs in California; that their situs was at the home port, the domicile of the owner. In St. Louis v. Wiggins Ferry Co., 11 Wall. 423, 20 L.Ed. 193, the boats were owned by an Illinois corporation and plied between a point in Missouri and a point in Illinois. It was held that they acquired no situs in the city of St. Louis; but that their situs was at the domicile of the owner, and that they were taxable in Illinois. In Morgan v. Parham, 16 Wall. 471, 21 L.Ed. 303, the owner of the ship had his domicile in New York, and the vessel was registered at the port of New York but plied between the ports of New Orleans and Mobile. The court held that the vessel had no situs outside of the domicile of the owner and was assessable at New York, where he resided, although, in fact, it never came there. In Ayer & Lord Tie Company v. Kentucky, 202 U.S. 409, 26 S.Ct. 679...