Louisville Tank Line v. Commonwealth

• Decision Date: 24 May 1906
• Citation: Louisville Tank Line v. Commonwealth, 93 S. W. 635, 123 Ky. 81 (Ky. Ct. App. 1906)
• Parties: LOUISVILLE TANK LINE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

93 S.W. 635

123 Ky. 81

LOUISVILLE TANK LINE v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 24, 1906

Appeal from Circuit Court, Franklin County.

"To be officially reported."

Action by the commonwealth against the Louisville Tank Line.From a judgment for plaintiff, defendant appeals.Affirmed.

White &amp Ray and Bodley, Baskin & Flexner, for appellant.

N. B Hays, Chas. H. Morris, C.J. Whittemore, and Hazelrigg &amp Hazelrigg, for the Commonwealth.

O'REAR J.

The appellant is a domestic corporation which owns a number of tank cars designed especially for transporting oil by railroads.Its business is to lease its cars to shippers, who in turn hire the railroads to haul them from point to point as may be desired.Appellant leases all its cars to the Globe Refinery Company, which uses them exclusively in its own business, for transporting its own oils and other products from place to place.Appellant does not do any other business than owning and leasing these cars.The commonwealth of Kentucky has taken steps to levy and collect a franchise tax from appellant under authority of section 4077, Ky. St. 1903, which reads: "Every railroad company or corporation, and every incorporated bank, trust company, guaranty or security company, gas company, water company, ferry company, bridge company, street railway company, express company, electric light company, electric power company, telegraph company, press dispatch company, telephone company, turnpike company, palace car company, dining car company, sleeping car company, chair car company, and every other like car company, corporation or association; also every other corporation, company or association having or exercising any exclusive or special privilege or franchise not allowed by law to natural persons, or for performing any public service, shall in addition to the other taxes imposed on it by law, annually pay a tax on its franchise," etc.A tank car company is not specifically named in the foregoing section.The question for decision is, whether it is embraced within the term "and every other like company."Appellant's contention is that the expression is meant to apply only to such companies as enjoy a special privilege not allowed by law to natural persons.Louisville Tobacco Warehouse Co. v. Commonwealth,106 Ky. 165, 49 S.W. 1069, 57 L. R. A. 33, andÆtna Insurance Co. v. Coulter, Auditor, 115 Ky. 796, 74 S.W. 1050 are particularly relied on by appellant in support of its position.

The Legislature intendeed of course to lay the franchise tax upon all the corporations whose business is expressly named in the section.It intended also to lay the tax on others not specifically named, but which are otherwise described.They are, first, those corporations or associations engaged in "like" or similar business to any enumerated just before in the statute; also, second, every other concern exercising an exclusive or special privilege or franchise; also, third, any private corporation performing a public service.Each classification is very comprehensive in the term used.Each was meant to include something in addition to those already indicated.It was not intended to confine the section either to "public service" corporations, or those exercising an exclusive privilege.For example, electric light companies, electric power companies, and press dispatch companies do not in any sense exercise any special privilege or franchise; nor are they performing a public service as that term is used.Anybody could engage in the business done by either of them, and would not be bound to serve only those whom it chose to, except by the act of 1898(now section 883a, Ky. St. 1903), press dispatch companies are required to sell their news to all papers in this state on the same terms; nor could they condemn private property, or have a tax levied for their benefit.Still, being expressly named, they are liable to the tax.On the other hand, others of the companies named are engaged in public service, such as street railway, railroad, telegraph and telephone companies.Others named, while they do serve the public in a sense, are not engaged in "the public service" that the statute refers to.They are such as guaranty and security companies, and trust companies.But it was clearly intended to bring under the tax all persons or corporations engaged in any particular business named, and all others not named but engaged in like business, or so similar as to reasonably and justly fall with any of the classes described.

Which brings us to a particular consideration of the nature of appellant's business.It says it is not a common carrier yet its business is exclusively that of hiring its vehicles to carry commerce on railroads.So far as that is concerned, it is not one whit different in nature from chair car, dining car, or sleeping car companies.We know that there are corporations who furnish cars of peculiar design to shippers, such as refrigerator cars for butcher products and the shipping of fruit, or "palace" cars for horses and cattle, poultry cars, and so forth.All these are engaged in "like" business to the sleeping car and chair car companies.The fact that the owner of the cars hires out its whole outfit to one customer does not change the character of its business.Refrigerator car companies, the horse palace car companies, and dining car companies, who do not operate railroads, in the absence of legislation might not be compelled to serve the public.At any rate, they would be under no penalty to the public for failing to do so.Having the right to hire out all their cars to such members of the public as they may choose to serve, it follows that they could let them all to one customer.Still the business would be auxiliary to that of common carriers by supplementing their agencies with...