The State ex rel. Hammer v. Wiggins Ferry Co.

• Decision Date: 24 December 1907
• Parties: THE STATE ex rel. HAMMER, Collector, Appellant, v. WIGGINS FERRY COMPANY
• Court: Missouri Supreme Court

106 S.W. 1005

208 Mo. 622

THE STATE ex rel. HAMMER, Collector, Appellant, v. WIGGINS FERRY COMPANY

Supreme Court of Missouri, Second Division

December 24, 1907

Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.

Reversed and remanded.

Johnson Houts, Marlatt & Hawes for appellant.

(1) The State Board of Equalization had jurisdiction under the provisions of article 8, chapter 149, Revised Statutes 1899 to assess defendant corporation if it was operating a railroad. 1. Section 1163, Revised Statutes 1899, defines a railroad corporation to mean "all corporations companies or individuals owning or operating a railroad." 2. Similarly comprehensive definitions are generally adopted by statutes of other States. 3. Many sections of the Missouri statutes contemplate ownership and operation of railroads by individuals and companies other than those organized under railroad corporation acts. Secs. 1062-1067, 1083, 1092-1094, 1096-1098, R. S. 1899. 4. Individuals and private companies may own and operate railways. Amos Kent Lbr. & Brick Co. v. Tax Assessor, 114 La. Ann. 864; 23 Am. and Eng. Ency. Law (2 Ed.), 674; Mitchell v. Township of Lake, 126 Mich. 367; Improvement Co. v. Slack, 100 U.S. 648; Williams v. Bettle, 50 N. J. L. 132; Beach v. Wakefield, 107 Iowa 567. 5. The Legislature has defined "person" to include corporation, company or firm. Sec. 9123, R. S. 1899. 6. Even without legislative definition the term "railroad company" would include any individual or company owning or operating a railroad. Railroad v. DeBusk, 12 Colo. 304; Moran v. Ross, 79 Cal. 163. (2) These tracks constitute a railroad within the meaning of article 8, chapter 149, Revised Statutes 1899. 1. Railroad defined: Pierce, Railroads, p. 2; Doughty v. Fairbank, 10 Q. B. D. 359; Bouvier's Dictionary. 2. A railroad need not be of any definite length, nor go beyond the limits of a city nor haul anything besides freight cars. Wiggins Ferry Co. v. Railroad, 107 Ill. 458. 3. These tracks are used just as the tracks of the Transfer Railway and East St. Louis Connecting Railway are, which are admittedly railroads. 4. It is not essential that railroad own rolling stock. 1 Elliott, Railroads, p. 7; Railroad v. Railroad, 118 U.S. 290. 5. The name of a corporation is immaterial; the question is, what does it do? Union Trust Co. v. Kendall, 20 Kan. 515. 6. Whatever does a railroad's work is a railroad. Amos Kent Lbr. & Brick Co. v. Tax Assessor, 114 La. Ann. 864; Mitchell v. Township of Lake, 126 Mich. 367; Fort Street Union Depot Co. v. Commissioner, 118 Mich. 340; Beach v. Wakefield, 107 Iowa 382; Railroad v. Irvin, 72 Ill. 432; Williams v. Bettle, 50 N. J. L. 132; Sams v. Railroad, 174 Mo. 68; Regina v. Newport Dock Co., 31 L. J. M. C. 266. 7. The evidence shows that the Wiggins Ferry Company owns and controls the St. Louis Transfer Railway and therefore operates those tracks jointly with those of the Transfer Railway. Courts will disregard corporate fictions to get at the real facts. Buie v. Railroad, 65 S.W. 30. (3) The assessment of "all other property mentioned in the Laws of 1901, section 2, page 232," was entirely legal. Western Union Tel. Co. v. Gottlieb, 190 U.S. 424; State ex rel. v. Western Union Tel. Co., 165 Mo. 502.

J. E. McKeighan for respondent.

(1) Defendant not only has the legal right to transfer loaded and empty freight cars across the Mississippi river at St. Louis, but it is its legal duty to do so. Wiggins Ferry Co. v. Railroad, 73 Mo. 413. It is a familiar rule of taxation that tax statutes are strictly construed against the government, and are to be strictly pursued by the officers of the government who act under them. There is no such thing as an equitable or liberal construction of a statute creating a tax, or providing for its assessment or collection. State v. St. Louis County Court, 13 Mo.App. 53, 84 Mo. 224. No authority was or is conferred upon the State Board of Equalization to assess the tracks in question. The State Board of Equalization, under sections 9338, 9339 and 9344, Revised Statutes 1899, is only authorized to assess railroad tracks owned by a railroad company or corporation, and constituting a railroad within the common and general acceptance of that word. The tracks in question were owned by defendant as a ferry company, as a means of performing its ferry duties in the transportation of loaded and empty freight cars across the Mississippi river, and merely as incidental to its main business, as a ferry company, and did not establish defendant ferry company as a railroad company or corporation, within the meaning of the sections cited. State ex rel. v. Stone, 119 Mo. 668; State ex rel. v. Railroad, 97 Mo. 348. (2) The franchise of the Wiggins Ferry Company to operate a ferry across the Mississippi river cannot be attached to the tracks in question, since the Ferry Company is incorporated by the laws of the State of Illinois, and its franchise cannot be assessed or taxed in the State of Missouri. McCullough v. Maryland, 4 Wheat, 316; Lewis v. Pacific Mail S. S. Co., 17 How. 599; St. Louis v. Wiggins Ferry Co., 11 Wall. 423; Morgan v. Parkham, 16 Wall. 471; Louisville Ferry Co. v. Kentucky, 138 U.S. 385. The situs of the franchise of the Wiggins Ferry Company, defendant, was in Illinois and not in Missouri. Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 126; St. Clair County v. Interstate Sand & Car Co., 192 U.S. 454.

OPINION

FOX, P. J.

This is an action which was instituted in the circuit court of the city of St. Louis, by the State at the relation of the collector of the revenue of said city, to collect certain taxes assessed by the State Board of Equalization against three and seven hundred and two one-thousandths miles of railroad tracks, owned and used by the Wiggins Ferry Company, in the city of St. Louis. A jury was waived, and the cause was tried by the court; the finding and judgment of the court were for the defendant, and the plaintiff duly prosecuted its appeal to this court.

There is no dispute about the facts of the case, except in one particular, which will hereafter be mentioned in paragraph two of this opinion, and they are substantially as follows:

The defendant, The Wiggins Ferry Company (which will hereafter be called the Ferry Company), is a corporation, and was duly incorporated under the laws of the State of Illinois on the 11th day of February, 1853, and was empowered, among other things, as follows:

"4. To survey and lay off said lands, or any part thereof, into blocks, lots, streets and alleys, and grade and pave said streets and alleys, or any part thereof, and to lay off and dedicate to public use, grounds for market places, schools, churches and parks, and to sell, lease and donate any part of said lands, in such manner and upon such terms as said company may deem proper, and execute conveyances for the same, and to subscribe for, take and buy and hold, and sell stock in any railroad or plank or turnpike road company, and issue bonds bearing such rate of interest, and payable at such times and places as the company may think proper, not exceeding one hundred thousand dollars.

"5. To keep a ferry or ferries at and from any point or points on said lands, across the Mississippi river, to St. Louis, in the State of Missouri, and to remove the same from place to place on said lands as necessity or convenience may require, and use boats or other crafts propelled by steam, heat, or other power, and possess, use and enjoy all the rights, privileges, franchises and emoluments recited in the preamble of this act as having been heretofore granted to the said Samuel Wiggins, his heirs and assigns, on and from the lands to be purchased as herein provided for and generally to do and perform all things in reference to the ownership, control, management, use and disposition of said ferry franchise, ferry and lands, and of the business carried on thereat, which a natural person might or could do."

Under the powers thus granted, the defendant, either by purchase or lease, acquired real estate on the east and west banks of the Mississippi river, at the points designated in its charter, for wharves and landing purposes. At first the Ferry Company, by means of boats, engaged in the carriage and transfer of freight and passengers over the Mississippi river, without the intervention of railroads and cars, and received and discharged same at the aforesaid wharves. In the course of time the public demands upon the defendant were such as to require it, in addition to the duties it was then performing, to handle and transfer freight over the river in car load lots. This new demand necessitated the construction and operation of a railroad at each end of the ferry -- one in Illinois and one in Missouri. In order to meet this new condition, the Ferry Company organized and incorporated, or has organized and incorporated, under the laws of Illinois, the East St. Louis Connecting Railway Company (which will hereafter be called the Connecting Company), and under the laws of Missouri, the St. Louis Transfer Railway Company (which will hereafter be designated the Transfer Company); the Ferry Company owning all the stock of both of said railway companies. Each of these railway companies constructed tracks connecting the east and west termini of the ferry with the various railroads and other business institutions which terminate at or which are located near said termini. In addition to those tracks, the Transfer Company constructed a number of switch tracks, side tracks and storage tracks on the Missouri side of the river.

When this system or scheme was completed, the Connecting Company by means of its engines, would receive from other railroads all cars of freight destined to St. Louis via the ferry, and...