Kelley v. Rhoads

• Decision Date: 28 February 1901
• Citation: 9 Wyo. 352,63 P. 935
• Parties: KELLEY v. RHOADS
• Court: Wyoming Supreme Court

63 P. 935

9 Wyo. 352

KELLEY v. RHOADS

Supreme Court of Wyoming

February 28, 1901

ERROR to the District Court, Laramie County, HON. RICHARD H. SCOTT Judge.

This was an action by John Kelley against Oliver F. Rhoads to recover taxes alleged to have been illegally collected from plaintiff by defendant while assessor of the county, upon a herd of sheep. The material facts are fully stated in the opinion.

Affirmed.

Van Orsdel & Burdick, for plaintiff in error.

The essential elements of interstate commerce are: point of departure in one State, destination in another, and such time required or consumed as is customary and usual by the means employed. These elements are all presented by the agreed statement of facts. The property of plaintiff was, therefore in transit and interstate commerce, and not subject to State taxation. The original point of departure and ultimate destination are the controlling factors; and intermediate points of debarkation are of minor importance and in no sense controlling. When the factors necessary to impress upon any shipment of merchandise the character of interstate commerce are present no State legislation, excepting only that enacted under the police powers, can properly place any burden of any kind upon such shipment; and the incidental benefit accruing to the property while en route, together with the time consumed, is immaterial, provided the length of time does not exceed that ordinarily resulting from the mode of travel adopted, and provided further that there is no sale disposal, or actual use of the property in transit.

By the expression, "use of property," in this connection is not meant the mere handling of the property in the manner in which it is usually handled, but it relates to consumption and application to the final purpose for which the property is to be used or manufactured, and not its transportation to market for sale, or killed for consumption. (State v. Engle, 34 N. J. L., 425; Brown v. Houston, 114 U.S. 620.)

Upon the facts, it is maintained that the character of the property as interstate commerce was clearly established, and that no fact justifies the conclusion that the primary purpose of coming into the State was to secure the privilege of grazing.

H. Waldo Moore, for defendant in error, contended that there was no error in the judgment, and referred for a discussion of the law and facts in the case to the brief of defendant in the case upon the former hearing. (Kelley v. Rhoads, 7 Wyo., 237.)

POTTER, CHIEF JUSTICE. CORN, J., and KNIGHT J., concur.

OPINION

POTTER, CHIEF JUSTICE.

The sole question in this case is whether certain sheep of plaintiff in error had obtained a situs in this State for the purposes of taxation.

On October 29, 1895, the defendant in error, as assessor for the county of Laramie, collected from plaintiff in error the sum of two hundred and fifty dollars as taxes upon a herd of sheep consisting of about ten thousand head belonging to the plaintiff in error, and then in the county of Laramie, in this State. Alleging the tax to have been illegally collected, plaintiff in error brought this suit in the district court to recover the amount so collected from him. The tax complained of was assessed and collected by authority of the provisions of Chapter 61, Laws of 1895. That act is set out in full in our opinion in this case when the same was before us on reserved questions, and its validity upheld. (7 Wyo. 237; 51 P. 593; 39 L. R. A., 594.)

The cause was submitted to the district court upon an agreed statement of facts. Judgment was rendered for defendant, and plaintiff now brings the case here on error, assigning as error that the judgment is not sustained by the evidence, and is contrary to law. The contention of the plaintiff in error is that the property taxed was the subject of interstate commerce, being in transit across this State from Utah to Nebraska; and, as such, was not taxable under the laws of this State. It is insisted that the facts show that the sheep were not brought into this State to be grazed, but were merely in transit on hoof through the State, and that their maintenance by grazing, while so engaged, was but an incident of their transportation.

When the case was here before, conceiving that the question whether or not the sheep were brought into the State for the purpose of being grazed, was a mixed one of law and fact, we did not decide it, deeming a decision upon a question of fact improper upon reserved questions. We did, however, in our opinion, mention the considerations which should control a determination of the fact, if in controversy, whether in a particular case sheep were brought here for grazing purposes, although in transit through the State.

We then said:

"We do not dispute the proposition that an owner of live stock, if not otherwise disobedient to the law, and is observant of the police regulations of the State, has the right to transport them to market by driving on foot, as well as by rail. Strictly speaking, they will be in transit by the one method as much as by the other. If, however, the purpose of such owner is not alone that of transportation, but comprehends also that of grazing, and feeding them upon the natural grasses which is their natural source of sustenance, not as a mere necessary incident of the travel, but as one of the purposes of such movement, they would not come within the rule which exempts personal property in transit from taxation. To determine the existence or non-existence of such a joint purpose all the facts must be considered, the course taken; the character of the territory grazed upon; the time employed; the subsequent method of intended shipment; the ordinary facilities for transportation by other means; the place selected for the commencement of the journey by rail, if that is in contemplation; possibly the time of the year, and the eventual purpose of their shipment; the character of the live stock and the manner in which said stock is customarily kept, maintained, and grown, and in general every competent fact which will tend to explain the purpose in view."

The statement of facts, so far as is material to this question, is as follows:

"Plaintiff at all times mentioned in the petition herein was the owner of the sheep mentioned in said petition, and that said sheep on or about the 29th day of October, A. D. 1895, were in the county of Laramie, in charge of James M. Yeates, the agent of the plaintiff, who was driving and transporting said sheep through the State of Wyoming, from the then Territory of Utah, to the State of Nebraska."

"In driving said sheep in such manner it was the practice of the person in charge to permit them to spread out at times in the neighborhood of a quarter of a mile, and while so being driven the sheep were permitted to graze over land of that width. They were driven in some instances through large pastures, in other instances through the public domain, and in other instances through pastures inclosed by fences. While being driven from the western boundary of the State to Pine Bluffs Station, they were maintained by grazing along the route of travel. "

"It was a fact, and defendant had knowledge of the fact, and was notified by plaintiff's agent, that said herd of sheep was being driven across the State of Wyoming to Pine Bluffs Station for the purpose of shipment, and that the same were not brought into the State for the purpose of being maintained permanently therein."

"The time consumed in driving said sheep from the western boundary of the State of Wyoming to Pine Bluffs Station, in Laramie County, was from six to eight weeks, and by the route followed the distance traveled was about five hundred miles."

"That for the purpose of shipping said sheep it was not necessary that they should be driven into the State of Wyoming, and that the railroad over which they were shipped could be reached from the point where the sheep were first driven by traveling a less distance than was necessary to travel from the place where they were first driven to any point in the State of Wyoming."

As was said in our former opinion, it is well settled that property engaged in interstate commerce by being transported through a State, on its journey from one State to another, would not be liable to taxation in the State through which it is passing; and if the sole purpose of the owner of live stock is to pass through the State on the way to eastern markets, such stock will not have been brought here to be grazed. It is also true that before personal property becomes subject to State taxation, it must have become identified and incorporated with the general mass of property in the State.

We held that when live stock are brought into the State to graze, they are fully identified and incorporated with the other property of the State; and that if that purpose is present the length of time the property remains here is immaterial. That, in such case, no question of interstate commerce is involved, which prevents the exercise by the State of its power of taxation. And we said, "We observe no distinction, in respect to the matter under consideration, between the case of a sheep owner of Utah or some other State, driving or bringing his sheep into this State, for the purpose of and permitting them to graze here, and an owner of like property residing in this State who brings in from another State sheep for the same purpose."

Adhering to the views expressed in our previous opinion, we quote further some observations then made respecting this character of property:

"Live stock in this State is, in the greater part, maintained by feeding or grazing upon the natural grasses of the soil. In the case of some kinds of live stock, the...