State v. Northern P. Exp. Co.

• Citation: 71 P. 404,27 Mont. 419
• Parties: STATE v. NORTHERN PAC. EXP. CO.
• Decision Date: 06 February 1903
• Court: United States State Supreme Court of Montana

71 P. 404

27 Mont. 419

STATE v. NORTHERN PAC. EXP. CO.

Supreme Court of Montana

February 6, 1903

Appeal from district court, Lewis and Clarke county; H. O. Smith Judge.

Action by the state of Montana against the Northern Pacific Express Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Milburn J., dissenting.

Jas Donovan, Atty. Gen., for the State.

Wm Wallace, Jr., for respondent.

HOLLOWAY J.

The parties to this action, proceeding under the provisions of section 2050 of the Code of Civil Procedure, agreed upon a case containing the facts upon which the controversy depends, and submitted the same to the district court for determination. The county treasurer of Lewis and Clarke county, in the name of the state, sought to collect a license or occupation tax from the defendant, Northern Pacific Express Company. The facts agreed upon, so far as they are material to a determination of the question in dispute, are that the defendant, Northern Pacific Express Company, is a foreign corporation engaged in carrying express matter for hire from points in this state to other points in this state, and also from points in this state to points without this state; that it maintains an office in Helena, and has paid its taxes upon all its property in the state; and that neither the defendant company, nor its agent, has ever applied for or obtained a license to conduct such business. The question submitted to the district court for decision was: "Is the defendant company liable for a license fee or an occupation tax under the laws of the state of Montana?" This question the district court answered in the negative, and entered a judgment for the defendant for costs, from which judgment the state prosecuted this appeal.

Section 4074 of the Political Code, which provides for licenses for express companies, is as follows: "Every person, association or corporation who engages as a common carrier in transmitting or conveying gold dust, gold and silver coin or bullion, money or bank notes, packages or express matter, or passengers from one place to another for hire or profit must procure a license and pay therefor in each county where the business is transacted as follows: Those doing business to the amount of fifty thousand dollars or over per quarter, must pay one hundred and eighty-seven dollars and fifty cents per quarter. This section shall not apply to street railway companies. Those doing business in any county to the amount of thirty thousand dollars and under forty thousand dollars per quarter, must pay ninety-three dollars and seventy-five cents per quarter. Those doing business in any county to the amount of twenty thousand dollars, and under thirty thousand dollars per quarter, must pay sixty-two dollars and fifty cents per quarter. Those doing business in any county to the amount of ten thousand dollars, and under twenty thousand dollars per quarter, must pay thirty-seven dollars and fifty cents per quarter, and in any amount under ten thousand dollars and over five thousand dollars per quarter must pay twenty-five dollars and twenty-five cents per quarter, and in any amount under five thousand dollars per quarter must pay twelve dollars and fifty cents per quarter." It will be noted that the language of section 4074, above, is: "Every *** corporation who engages as a common carrier in *** conveying *** express matter *** from one place to another for hire *** must procure a license ***;" and section 4043 of the Political Code requires that the license shall be obtained as a condition precedent to the carrier's doing any business. Our inquiry, then, is, is this an attempt on the part of the state to interfere with or regulate interstate commerce, or, in other words, does the license or occupation tax provided for above affect the business of the defendant company which is interstate in its character, or only that business which is purely local or intrastate?

While there are some exceptions to be found in the decided cases we believe the very great weight of authority fairly established this as a general rule for the interpretation of license statutes, as applicable to cases of the character of this one now under consideration, viz.: "Where a carrier is engaged in both interstate and intrastate business, in the imposition of a tax upon such carrier the interstate business must be discriminated from the intrastate business, or it must be made capable of such discrimination, so that it may clearly appear that the intrastate business alone is taxed. Whenever the subjects of taxation can be separated so that that which arises from interstate commerce can be distinguished from that which arises from commerce wholly within the state, the distinction will be acted upon by the courts, and the state permitted to collect the tax arising upon commerce solely within its own territory." If, however, the terms of the statute are general, and the license fee a unit charged against the business of the carrier as such,--as strictly an occupation tax,--and no attempt is made by the language of the statute to discriminate between the local and interstate business, but the license is required as a condition precedent to the carrier's commencing or conducting business, then the imposition of the tax will be deemed an interference with and an attempt to regulate interstate commerce, and for that reason void. 17 Am. & Eng. Enc. Law (2d Ed.) 110. This distinction has been noted frequently, and, with few exceptions, has been recognized and followed by the courts. In each of the following cases the party upon whom the license was imposed was engaged in both local and interstate commerce: In Express Co. v. Seibert, 142 U.S. 339, 12 S.Ct. 250, 35 L.Ed. 1035, the court had under consideration a statute of Missouri which provides that express companies should make report of business done "within this state," and requiring an annual license fee or occupation tax based thereon; and, in disposing of the question whether the statute was intended to or did apply to or affect interstate commerce, the court says: "Was the business of this express company in the state of Missouri, on the receipts from which the tax in question was assessed under this act, interstate commerce? The allegation of the bill is very positive that in the prosecution of its business as an express company the complainant is engaged in part in the transportation of goods and other property between the states of Nebraska, Kansas, Texas, and other states of the Union, and the state of Missouri, and also in the business of carrying goods between different points within the limits of the state of Missouri. The question on this point, therefore, is narrowed down to the single inquiry whether the tax complained of in any way bears upon or touches the interstate traffic of the company, or whether, on the other hand, it is confined to its intrastate business. We think a proper construction of the statute confines the tax which it creates to the intrastate business, and in no way relates to the interstate business of the company. The act in question, after defining in its first section what shall constitute an express company, or what shall be deemed to be such in the sense of the act, requires such express company to file with the state auditor an annual report 'showing the entire receipts for business done within this state of each agent of such company doing business in this state,' etc., and further provides that the amount...