Pere Marquette R. Co. v. City of Ludington

• Decision Date: 15 June 1903
• Citation: 133 Mich. 397,95 N.W. 417
• Court: Michigan Supreme Court
• Parties: PERE MARQUETTE R. CO. v. CITY OF LUDINGTON.

95 N.W. 417

133 Mich. 397

PERE MARQUETTE R. CO. v. CITY OF LUDINGTON.

Supreme Court of Michigan

June 15, 1903

Error to Circuit Court, Mason County; Aaron V. McAlvay, Judge.

Action by the Pere Marquette Railroad Company against the city of Ludington. There was judgment for defendant, and plaintiff brings error. Reversed.

M. B Danaher (F. W. Stevens, of counsel), for appellant.

Henry C. Hutton, for appellee.

CARPENTER J.

This is a suit brought by the plaintiff to recover from the defendant a tax claimed to have been illegally assessed, and paid involuntarily and under protest. In the year 1899 the city of Ludington assessed the tax against the plaintiff on account of its ownership of a stock of groceries, of the value of about $1,000, situated in its warehouse in said defendant city. This stock of groceries was kept to furnish supplies for the crew and passengers on a line of steamboats owned and operated by plaintiff. These boats ran between said city of Ludington, one of plaintiff's termini upon Lake Michigan, and points in Wisconsin. On February 28, 1900, the city treasurer of Ludington, under a warrant for the collection of said taxes, levied on certain personal property of plaintiff. Thereupon, under a written protest, plaintiff paid the tax, and subsequently, on the 9th of April commenced this suit. The case was tried before the judge without a jury, who, after finding the foregoing facts rendered a judgment for the defendant, on the ground that the assessment was legal and the suit not brought within the time limited by law. We are called upon to consider the correctness of each of these holdings.

1. The legality of the assessment under consideration depends on whether the stock of groceries was taxable under section 6277, Comp. Laws 1897. That section reads: 'Every railroad company and union railroad station and depot company owning or operating any railroad situated in whole or in part in this state, shall, on or before the first day of July in each year, pay to the State Treasurer, on the statement of the Auditor General, a specific tax upon the property and business of such railroad corporation operated within the state, which tax shall be computed in the following manner, namely: Upon all such gross income not exceeding $2,000 per mile of road actually operated within this state, two and one-half per cent. of such gross income; upon such gross income in excess of $2,000 and not exceeding $4,000 per mile, three and one-fourth per cent. thereof; upon all such gross income in excess of $4,000, and not exceeding $6,000 per mile, four per cent. thereof; and upon all such gross income in excess of $6,000 per mile, and not exceeding $8,000 per mile, four and one-half per cent. thereof; and upon all such gross income in excess of $8,000 per mile of the road so operated, five per cent. thereof; that all gross income of union railroad station and depot companies whose earnings are in excess of $20,000 per mile shall pay on all such gross incomes in excess of $20,000 per mile of road so operated, ten per cent. thereof. And when the railroad lies partly within and partly without this state, prima facie, the gross income of said company from such road for the purposes of taxation shall be on the actual earnings of the road in Michigan, computed by adding to the income derived from the business transacted by said company entirely within this state, such proportion of the income of said company arising from interstate business as the length of the road over which said interstate business is carried in this state bears to the entire length of the road over which said interstate business is carried. The taxes so paid shall be in lieu of all other taxes upon the properties of such companies, except such real estate as is owned and can be conveyed by such corporations under the laws of this state, and not actually occupied in the exercise of its franchises, and not necessary or in use in the proper operation of its road; but such real estate so excepted shall be liable to taxation in the same manner, and for the same purposes, and to the same extent, and subject to the same conditions and limitations as to the collection and return of taxes thereon, as is other real estate in the several townships or municipalities within which the same may be situated.'

It is contended by defendant, notwithstanding the fact that section 6269, Comp. Laws 1897, authorizes plaintiff to own and operate the line of steamboats, that the language, 'the taxes so paid shall be in lieu of all other taxes upon the properties of such companies,' except certain specified real estate, does not relieve defendant from liability to pay taxes upon said steamboats and the supplies used thereon. This contention places a narrow and strained construction on the language above quoted. In violation of sound principle and authority (Sutherland on Statutory Construction, � 328; Sherwin v. Bugbee, 16 Vt., at page 445; Brocket v. R. R. Co., 14 Pa.,...