Wright v. Union Tank Line Co

• Decision Date: 13 July 1915
• Parties: WRIGHT, Comptroller General. v. UNION TANK LINE CO.
• Court: Georgia Supreme Court

85 S.E. 994

143 Ga. 765

WRIGHT, Comptroller General.

v.UNION TANK LINE CO.

Supreme Court of Georgia.

July 13, 1915.

(Syllabus by the Court.)

Lumpkin and Hill. JJ., dissenting.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by the Union Tank Line Company against W. A. Wright, Comptroller General. From a judgment for plaintiff, defendant brings error. Affirmed in part, and in part reversed.

The Union Tank Line Company, a New Jersey corporation, was engaged in the business of renting out tank cars to be employed in transporting oil and other like fluids over railroads throughout the United States. It had no office or agent in Georgia; nor did it have any property or do any business in Georgia, except by permitting its cars to be brought into and carried out of the state, and used, while in the state, by those having them for the time being. The contracts for the rental of the cars were made beyond the limits of the state, and the tank company also received its remuneration for the rent of its cars at its office outside of the state. In addition to the rents which it received from its customers (shippers of oil), it received, from the several railroads over which its cars were moved, a stated sum per mile for each mile that the cars were moved while on the several lines of the respective railroads. Under a contract of rental, executed outside of the state, different cars were supplied to one of its customers from time to time, which passed in and out of the state, and between intermediate points in the state, in the movement of oil in the reg ular course of business. The officers of the tank company wrote the comptroller general, asking for a form of tax returns "required to be made by equipment companies under section 090, Code Georgia." No forms had ever been prepared for equipment companies, and the comptroller general forwarded forms prepared for express companies, explaining certain alterations to be made. After some correspondence the tank company made a return for the year 1913. The prepared return contained, among other things, the following:

"Value of All Real Estate Owned by Company in or out of Georgia: $.... None.

Total value of Sleeping or Palace Cars and all other Cars and Equipments, and all other Personal Property: $10,518,-333.16.

Total Number of Miles R. R. Lines over which Sleeping Cars are Run: 251, 909.

Number of Miles of R. R. Lines in Georgia over which Sleeping Cars are run: 6976 1/2.

"Value Franchise:....$ No Franchise.

Total Value of Property Taxable in Georgia: $47,310.00

Union Tank Line had an average of 57 tank cars in Georgia during 1913, in which, at a value of $830.00 per capita, equals: $47,310.00."

Acknowledging receipt of this return, the comptroller general on March 16, 1914, wrote to the officers of the company as follows:

"I acknowledge receipt of your letter of March 12th, together with the enclosure of the 1914 return as for the year ending December 31, 1913, but the return is for taxation this year, though the mileage figures, of course, have to be based on the previous year's business. Returns should, of course, be made for back years, as this is the first year your company has ever made a return for taxation. Unfortunately our courts have held that back taxes can be collected for only seven years, 1907, 1908, 1909, 1910, 1911, 1912, and 1913. Special blanks are now being prepared for equipment companies, and I will mail you a supply for the years mentioned within the next few days—just as soon as they are received from the printer.

"As to the return filed, you have furnished the data desired, but have made an error in the application of same. After giving the mileage for the company everywhere and for Georgia, you then go ahead and assign 57 tank cars for this state and value them at $830 each, making the total for Georgia §47, 310. This is an incorrect method. If you were to be allowed to assign so many cars to the state for taxation, there would be no need for the mileage figures to be furnished. The value to be assigned to Georgia must be in the same proportion to the entire valuation for the entire company as the mileage in Georgia bears to the entire mileage everywhere. Thus: 251, 999: 6, 976.5:: $10,518, 333:?——. The $10,518, 333 multiplied by 6.976.5 gives 73, 381, 150, 174.5, which divided by 261, 999 gives $291,196, the proper valuation to be assigned to Georgia. Or, to work it out by percentage instead of proportion, 6.976.5, the Georgia mileage, is 2.76846 per cent. of 251, 999. the entire mileage. Georgia is therefore entitled to 2.76846 per cent, of the entire valuation. This per cent. of $10,518, 383 is $291,195, 84, or the same sum arrived at by proportion, if we call the 84 cents an even dollar. Unless decimals are extended almost indefinitely, there is, of course, always this slight difference.

"The correct valuation for Georgia of your physical property is therefore $291,196, underthe return you have made. A franchise value should also be returned. And whatever the value you place on the franchise for the entire country, 2.76846 per cent. of the same must be assigned for Georgia. Thus, if you value your franchise at $1,000, 000, the franchise value assigned to Georgia would be $27,685. Please let me hear from you in regard to the franchise. The returns for the seven years back you need not bother with until you receive the blanks mentioned in the foregoing."

Nothing further having been heard by the comptroller general from the company, on April 7, 1914, he assessed the physical property of the company at $291,196 and franchise at $27,685, the franchise being doubled, as prescribed in section 8 of the act of 1902 (Civil Code, § 1029), making the total valuation for each of the years 1907-1914, inclusive, $346,566. On the same day the comptroller general informed the tank company, by letter, of the assessment. The letter also contained the following:

"Under the law you have twenty days from this date in which to decide whether to accept this valuation or submit to arbitration the question of the value of your company's property. Unless within twenty days you notify me of your intention to arbitrate, and also furnish me with the name of your arbitrator, the assessments will stand."

The company acknowledged receipt of the letter, and considerable correspondence ensued; but it did not offer to arbitrate. After the time for arbitration was over, the company, by its attorney, on May 26, 1914, offered to make returns for the years 1907 to 1912, inclusive, similar to that tendered for the year 1913, hereinbefore set out, except that there was a variance as to values. These returns were also rejected. After this the tank company instituted an action for injunction to prevent the levy and collection of the taxes as contended for by the comptroller general. The court refused to dismiss the petition on general demurrer. By consent the trial proceeded before the judge, under an agreed statement of facts, without the intervention of a jury. A judgment was rendered for the plaintiff, and the defendant excepted.

Warren Grice, and Clifford Walker, Attys. Gen., for plaintiff in error.

King & Spalding, of Atlanta, and Campbell, Harding & Pratt, of New York City, for defendant in error.

ATKINSON, J. [1] 1. From what has been said it is to be observed that the case relates to two matters, namely: A tax assessment against tangible property of the company; and, second, a claim of right to assess a franchise tax. We will consider each in the order named above. While some of the expressions used in the agreed statement of facts, if taken alone and dissociated from the context, might have the appearance of conceding that the comptroller general was seeking to tax property outside of the state, yet, when taken as a whole, it is evident that the parties did not intend any such concession. The effort was to tax property in this state, and in doing so to apply the statute designed as a rule to ascertain the property so coming into the state and its proper valuation. The correspondence between the officers of the tank company and the comptroller general, set out in the statement of facts, formed a part of the petition for injunction, which is to be taken most strongly against the plaintiff. It referred in express terms to Civil Code, § 990, and showed that both parties contemplated that the return which the comptroller general was insisting upon was such as should be made under the requirement of the statute. It was contended by the plaintiff that the effect of carrying out the scheme of the statute, would tax property out of the state. The comptroller general denied that such would be the effect, and proposed only to tax cars in pursuance of the statute. The attack made by the plaintiff, being upon this method of taxing, resolved itself merely into an attack upon the constitutionality of the statute. Whether it was unconstitutional was a question of construction and of law, which the parties would not yield in the pleadings or in the statement of facts. A construction of the latter as a concession by the comptroller general that he was attempting to tax cars that had not come into the state would make the comptroller general assume a right to do a thing for which he had never contended, and be outside of the real issue—the constitutionality of the scheme of the statute.

2. In determining as to the constitutionality of the scheme of the statute referred to, resort must be had to its provisions. The statute is embodied in the Civil Code, § 990, which is as follows:

"Any person or persons, copartnership, company or corporation wherever organized or incorporated, whose principal business is furnishing or leasing any kind of railroad cars except dining, buffet, chair, parlor, palace, or sleeping cars, or in whom the legal title in any such cars is vested, but which are operated, or leased, or hired to be operated on any railroads in this state, shall be deemed...