131 Tenn. 490 | Tenn. | 1914
delivered the opinion of the Court.
Complainant is a foreign corporation, organized under the laws of the State of Delaware, with its main office in the city of Wilmington, Del. It averred that it was engaged in the business of manufacturing and selling powder, dynamite, and other explosives; that it has plants for the manufacture of dynamite located at Hopatcong, N. J., Center, Mich., Atlas, Mo., Yigorit, Cal., and plants for the manufacture of blasting powder at Riker, Pa., Shenandoah, Pa., Ool-tewah, Tenn., Belleville, Ill., Pittsburg, Kan., and Patterson, Okl.; that it had a large number of storage or distributing magazines located in Arkansas, Kentucky, ' California, Illinois, Kansas, Maine, Missouri, Michigan, New Jersey, Oklahoma, Pennsylvania, Tennessee, and Texas; that it maintained general sales offices at Phlidelphia, Pa., Houghton, Mich., Joplin and St. Louis, Mo., and Nashville, Tenn.; and that the home office at Wilmington, Del., had general supervision over the sales. Complainant further averred
Complainant charged that Acts 1909, ch. 504, was unconstitutional and void; that under' the classification of this act complainant upon its capital stock, which is in excess of $5,000,000', was taxed, and wrongfully forced to pay, the sum of $1,500'; that said act arbitrarily fixes the entrance fee of a foreign corporation upon the amount of its capital stock without any reference to the amount or extent of its business, intrastate or interstate; that the imposition of this tax is a hindrance to its interstate business; that this act lays a burden upon interstate commerce, and is therefore in conflict with article 1, section 8, of the constitution of the United States; that this statute imposes a tax upon complainant’s capital stock representing* property outside the State of Tennessee, and thereby
Defendant demurred to the' bill as follows:
First, that the bill shows that the fees or taxes required by the State of Tennessee as a condition precedent to the admission of complainant to do business in this State were paid by complainant voluntarily, and not under duress.in fact or law, so that complainant has no right to recover said fees or taxes.
Second, Acts 1909, ch. 504, pursuant to the provisions of which complainant paid to defendant the fees or taxes referred to in the bill, is a valid and constitutional statute of this State, enacted according to her lawful and constitutional authority to impose upon foreign corporations conditions for their admission to do business in the State, and is not in contravention of the federal constitution in any of the particulars alleged in the bill.
Third, the bill shows that complainant is principally engaged in the manufacture of powder, and the principal business for which it sought and received admission to do business in Tennessee was and is the manufacture of powder, which is not in any sense “commerce, ’ ’ and the fees named in said Acts 1909, ch. 504, as a condition precedent to complainant’’s carrying on its said business in this State, do not infringe any
The chancellor sustained the demurrer and dismissed the bill.
Upon the argument of the case counsel for complainant asked leave of the court- to so amend the bill by filing as exhibit A thereto a copy of the original receipt executed by the secretary of State, showing that the payment was made under protest and without waiver of any rights of the Atlas Powder Company to seek to have the act under which said payment was exacted declared unconstitutional. Said amendment was made.
At the conclusion of the argument of the attorney .general, complainant made application to further amend the bill by filing as Exhibit B thereto a copy of the decree of the district court of the United States for the district of Delaware, which amendment was also allowed.
This decree adjudged that a combination existed among certain defendants in restraint of interstate ■commerce in powder and other explosives, and had •monopolized a part of such commerce, and enjoined the continuance of said combination and monopoly, .and that same be dissolved, and provided that certain plants owned by the various defendants therein, including the plant at Ooltewah, Tenn., be transferred to a corporation to be organized for that purpose, and other plants were to be transferred to other concerns
After the chancellor had rendered his decree in the present case, complainant made application through a petition for further amendment to its original' bill, undertaking to set up the fact that such amendment was agreed to be permitted by the court pending the argument, but the application to file this petition was denied by the chancellor because it was an effort to make an issue with the court as to what occurred on the argument and hearing of the demurrer, and because it was irrelevant and attempted to set out argument of counsel on the demurrer.
Complainant excepted to this action of the chancellor, and incorporated his petition in a bill of exceptions.
The first assignment of error complains of the re-. fusal of the chancellor to permit this aditional amendment. It is not proper for this court to interfere with the ruling of the chancellor in this regard, because complainant cannot, after a decree has been entered, make an issue with the court as to what occurred pending the trial, by a petition of this nature. Complainant should have presented in proper form the amendment it desired at the proper time. If this had been done, no dispute could have arisen as to what the amendment should include.
The second assignment of error is that the chancellor erred in sustaining the first ground of defend
It has been held by this court that, before it can hold a payment of taxes involuntary, it must appear that the officer had in his hand process authorizing the seizure of the person or property of the taxpayer; that such seizure of one or the other was imminent, and that there was no other legal means of protecting the person or property than by payment; that under such circumstances payment under protest will save the rights of the taxpayer to recover if the tax should be illegal; that mere protest or unwillingness is not sufficient. Railroad v. Marion County, 120 Tenn., 352, 108 S. W. 1058.
Complainant insists, however, that the payment under the conditions herein named constituted payment under duress. Relying upon a number of authorities, perhaps the cases most applicable to the present state of facts cited by complainant in support of this proposition are Gaar, Scott & Co. v. Shannon, 223 U. S., 468, 32 Sup. Ct., 236, 56 L. Ed., 510; Atchison, etc., Ry. Co. v. O'Connor, 223 U. S., 280, 32 Sup. Ct., 216, 56 L. Ed., 436, Ann. Cas., 1913C, 1050.
In the first-mentioned case the secretary of State was sued for the recovery of taxes paid under protest by the plaintiff, G-aar, Scott & Co. A statute had been passed by the Texas legislature providing for a franchise tax and for foreifture of the right of a foreign corporation to do business in the State if the tax was
“Neither a statute imposing a tax, nor the execution thereunder, nor a mere demand for payment, is treated as duress. It does not necessarily follow that there will be a duress of goods. Or, if there is, the citizen, to avoid the consequences of the duress, may pay the money, regain the use of his property, and maintain a suit for the recovery of what has been exacted from him. The legal remedy redresses the wrong. But he has the same right to sue if he pays under compulsion of a statute whose selfexecuting provisions amount to duress. An act which declares that, where the franchise tax is not paid by a given date, a penalty of 25 per cent, shall be incurred, the license of the company shall be canceled, and the right to sue shall be lost, operates must more as duress than a levy on a limited amount of property. Payment to avoid such consequences is not voluntary, but compulsory, and may be recovered back. Swift & C. & B. Co. v. United States, 111 U. S., 29, 4 Sup. Ct., 244, 28 L. Ed., 343; Robertson v. Frank Bros., 132 U. S., 23, 10 Sup. Ct., 5, 33 L. Ed., 238; Oceanic Steam Navigation Co. v. Stranahan, 214*502 U. S., 329, 29 Sup. Ct., 671, 53 L. Ed., 1018; Atchison, T. & S. F. R. Co. v. O’Connor [223 U. S., 280, 32 Sup. Ct., 216, 56 L. Ed., 436, Ann. Cas., 1913C 1050], decided this day . . . Otherwise plaintiff might he without any remedy whatever; for in Arkansas Bldg. & Loan Ass’n v. Madden, 175 U. S., 269, 20 Sup. Ct., 119, 44 L. Ed., 159, it was held that the taxpayer was not entitled to an injunction against the enforcement of a similar statute of the State of Texas, unless he could show that there was no adequate remedy at law. ”
In the case of Atchison, T. & S. F. R. Co. v. O’Connor, 223 U. S., 280, 32 Sup. Ct., 216, 56 L. Ed., 436, Ann. Cas., 1913C, 1050, the plaintiff sued to recover taxes paid under duress and protest. The defendant demurred that the payment, was voluntary. In this case Justice Holmes speaking for the court said:
“It is reasonable that a man who denies the legality of a tax should have a clear and certain remedy. The rule being established that; apart from special circumstances, he cannot interfere by injunction with the State’s collection of its revenues, an action at law to recover back what he has paid is the alternative left. Of course we are speaking of those cases where the State is not put to an action if the citizen refuses to pay. In these latter he can interpose his objections by way of defense; but when, as is common, the State has a more summary remedy, such as distress, and the party indicates by protest that he is yielding to what he cannot prevent, courts sometimes perhaps have*503 been slow to recognize the implied duress under which payment is made. Bnt even if the State is driven to an action, if at the same time the citizen is pnt at a serious disadvantage in the assertion of his legal, in this ease of his constitutional, rights, by defense in the suit, jutsice may require that he should be at liberty to avoid . . . bringing suit on his side. He is entitled to assert his supposed right on reasonably equal terms. See Ex parte Young, 200 U. S., 123, 146, 28 Sup. Ct., 441, 52 L. Ed., 714, 723, 13 L. R. A. (N. S.), 932, 14 Ann. Cas., 764. If he should seek an injunction on the principle of that case and of Western Union Tel. Company v. Andrews, 216 U. S., 165, 30 Sup. Ct., 286, 54 L. Ed., 430, he would run the same risk as if he waited to be sued. ... It may be that the forfeiture of the right to do business would not be authoritatively established except by a quo warranto provided for in a following section, but before or without the proceeding the effect of the forfeiture clause upon the plaintiff’s subsequent contracts and business might be serious (see Ludwig v. Western U. Tel. Co., 216 U. S., 146, 30 Sup. Ct., 280, 54 L. Ed., 423), and in any event the penalty would go on accruing during all the time that might be spent before the validity of the defense could be adjudged. As appears from the decision below, the plaintiff could have had no certainty of ultimate success, and we are of opinion that it was not called upon to take the risk of having its contracts disputed and its business injured and of finding the tax more or less nearly doubled in case it finally had to*504 pay; in other words, we are of opinion that the payment was made under duress.”
We are inclined to the view that the corporation in this case can make the question of the right of the State to exclude it without first proceeding to undertake business in defiance'of the statute, and waiting for the State to bring proceedings in the nature of quo warranto against it, calling upon it to show cause hv what authority it attempts to do business in Tennessee. Such a course of action by complainant would be a flagrant disregard of the statute and a defiance of the authority of the State, and would also subject all its contracts within the State to attack, and render them illegal and void. Being in the attitude of either paying the tax or rendering its contracts void, we believe there was such duress under the authority of Gaar, Scott & Co. v. Shannon, and Atchison, etc., R. R. Co. v. O'Connor, supra, that its payment of the tax was not voluntary. Complainant would have its right of mandamus, it is true, but in the meantime its factory in Tennessee would necessarily have to remain idle, and its other properties in the State could not be utilized. Its business would be greatly crippled and hindered, thereby entailing financial loss, while its rights were being litigated in the courts.
It occurs to us that to thus require it to go through the various courts necessary to finally test the law and meanwhile compel its properties to stand in idleness and suffer loss would be even greater duress than the levying'of a distress warrant or other process against its property by the State to collect the tax.
The case of Railroad v. Marion County is not in point. In that case there was no impending loss to the taxpayer nntil the officers for the collection of the taxes took action to collect by process of law and the property abont to be seized or sold for payment of the tax. We therefore hold that the complainant may test its rights in the present suit, and we proceed to consider the merits of the litigation.
The third and fourth assignments of error raise the important questions in the lawsuit. These questions are: Can the State enforce a tax under the circumstances here presented? or will such tax be a burden upon interstate commerce? In other words, does the Act of 1909, ch. 504, infringe upon the commerce clause of the constitution, and to give it any effect in cases like this would property be taken without due process of law in violation of the fourteenth amendment to the federal constitution?
The power of congress over interstate commerce is supreme under the federal constitution. It is well settled that the levying of taxes by a State which will impede, interfere, or burden such commerce between the states, is invalid. Galvston, H. & S. A. R. Co. v. Texas, 210 U. S., 217, 28 Sup. Ct., 638, 52 L. Ed., 1031; Norfolk & Western R. R. v. Pa., 136 U. S. 114, 10 Sup. Ct., 958, 34 L. Ed., 394, 396; Robbins v. Taxing Dist.,
It is equally well settled that, where the imposition of a tax by a State does not burden or affect interstate commerce, the control of the legislature over foreign corporations is supreme. A State may exact such conditions against a foreign corporation as it may deem suitable to the public interest or policy as a prerequisite to its admission within the State. It may exact the payment of a specific sum to the State each year. It may exclude a foreign corporation entirely, or restrict its business to particular localities, or may exact such security for the performance of its contracts with its citizens as is deemed best to promote the public interest.
In one case the supreme court of the United States upon this subject said:
“The recognition of its existence even by other States, and the enforcement of its contracts made therein, depend purely upon the comity of those States —a comity which is never extended where the existence of a corporation or the exercise of its powers is prejudicial to their interests or repugnant to their policies. Having no absolute right of recognition in other States, but depending for such recognition and the enforcement of its contracts upon their assent, it follows, as a matter of course, that such assent may be granted upon such terms and conditions as those*507 States may think proper to impose.” Horn Silver Mining Co. v. N. Y., 143 U. S., 314, 12 Sup. Ct., 404, 36 L. Ed., 167; Mutual Life Ins. Company v. Spratley, 172 U. S., 602, 19 Sup. Ct., 308, 43 L. Ed., 570; Hooper v. Cal., 155 U. S., 648, 15 Sup. Ct., 207, 39 L. Ed. 297; Bank of Augusta v. Earl, 39 U. S. (13 Pet.), 519, 10 L. Ed., 274; Paul v. Va., 75 U. S. (8 Wall.), 168, 19 L. Ed., 357; Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S., 1, 24 L. Ed., 708; Pembina Mining Co. v. Pa,. 125 U. S., 180; 8 Sup. Ct., 737, 31 L. Ed., 650.
It is equally true that the mere fact that a corporation is engaged in interstate commerce does not exempt its property from State taxation nor preclude the State from fixing a privilege tax or entrance fee upon its right to enter a foreign State and transact business. U. S. Exp. Co. v. Minn., 223 U. S. 335, 32 Sup. Ct., 211, 56 L. Ed., 459; Baltic Mining Co. v. Mass., 231 U. S., 83, 34 Sup. Ct., 15, 58 L. Ed., 133.
Furthermore, a resort to the receipts on the property or capital employed by such foreign corporation when such receipts or capital are not taxed as such, but are taken as a mere measure of a tax, which is of lawful authority within the State, has likewise been sustained by the supreme court of the United States. Maine v. Grand Trunk Line, 142 U. S., 217, 12 Sup. Ct., 121, 35 L. Ed., 994; Provident Ins. Co. v. Mass., 6 Wall., 611, 18 L. Ed., 907; Flint v. Stone-Tracy Co., 220 U. S., 107, 162, 165, 31 Sup. Ct., 342, 55 L. Ed., 389, 417, 419, Ann. Cas., 1913B, 1312; Horn Silver Mining Co. v. N. Y., supra.
Two opinions relied upon by the complainant in the present case as sustaining its position that the statute here in question is violative of the commerce reservation of authority contained in the federal constitution, and also in violation of the due process clause of said constitution, were rendered by the supreme court of the United States in the cases of Western Union Telegraph Company v. Kansas, 216 U. S., 1, 30 Sup. Ct., 190, 54 L. Ed., 355, and Pullman Co. v. Kansas, 216 U. S., 56, 30 Sup. Ct., 232, 54 L. Ed., 378,
The Kansas statute in question in these cases required a foreign corporation to file irrevocable written consent that actions might be brought against it in the State court by service on the secretary of State; that it should pay $25 application fee as a prerequisite to its application to be granted permission by.the charter board to enter the State, and, when this permission was granted, it should then file a copy of its charter, or, if then doing business within the State, to file such
In the case of Pullman Co. v. Kansas, supra, the Pullman Palace Car Company had in operation in the State of Kansas a number of ears which were used not only in intrastate business, but also in interstate business. It was claimed on behalf of both these companies that their business and facilities for doing business were so intermixed that a tax upon the company was necessarily a burden upon interstate business, and it was so held by a majority of the court. One opinion was by Mr. Justice Harlan and another by Mr. Justice White in favor of the majority view. A dissenting opinion was delivered by Mr. Justice Holmes, concurred in by the Chief Justice, and also by Mr. Justice McKenna, and it was said that the late Mr. Justice Peckham took part in the consideration and agreed with the minority. Mr. Justice Holmes in his dissenting opinion in the Pullman Company Case accuses the court of abandoning its latest decision in the case of Security Mutual Life Insurance Co. v. Prewitt, 202 U.
“I am quite unable to believe that an otherwise lawful exclusion from doing business within a State becomes an unlawful or unconstitutional burden on com-. merce among States because if it were let in it would help to pay the bills. Such an exclusion is not a burden on foreign commerce at all; it simply is a denial of a collateral benefit. If foreign commerce does not pay its way by itself, I see no right to an entrance for domestic business to help it out.”
It will be observed that in the two cases last mentioned each of those corporations was primarily engaged in interstate commerce. The telegraph company used the same offices and the same operators in sending interstate messages and intrastate messages, and it was a public service corporation, no doubt doing largely an interstate business. In the case of the Pullman Palace Car Company the same employees and cars were used in carrying passengers from one State to another that were used for the same purposes within the' State.
A more recent opinión by the supreme court of the United States, and one which, we think, is much more in point with the present case than either of the cases mentioned above, is that of Baltic Mining Company v. Mass., supra, and S. S. White Dental Co. v. Mass., 231 U. S., 68, 34 Sup. Ct., 15, 58 L. Ed., 127. The opinion in these two cases was delivered to Mr. Justice Day, who was with the majority in the Kansas cases.
The S. S. White Dental Mfg. Company was a Pennsylvania corporation manufacturing, buying, and selling dental supplies. Its capital stock was $1,000,000, with assets of $5,711,718.29. It had a place of business in Boston, consisting of large salesrooms, stockrooms, offices, and storerooms. Books were kept there, and a New England sales agent was in charge, with fifty-four persons employed; twelve of that number being salesmen who traveled through New England. No manufacturing was done in Massachusetts. Goods were sold over the counter in the Boston store and for delivery in Massachusetts by messenger, mail, and express. Fifty per cent, of the sales in that store were to residents of Massachusetts, and fifty per cent, for delivery to persons outside the State, billed by the company direct to the purchaser as consignor and consignee, respectively. Orders were also accepted at the Boston storerooms for delivery from New York and Pennsylvania factories, being billed direct to the purchaser from the factory. The property of this concern in Massachusetts was about $100,000. It had fourteen places of business other than those in Massachusetts and Pennsylvania, which were located in New York and other States. Ten per cent, of its sales were made in Massachusetts; one-half being for delivery in that State. This company also complied with the law relating to foreign corporations, and sought to recover an excise tax of $200. The excise tax required of each
In the Baltic Mining Company case the court, after stating the powers of congress over interstate commerce, and the right of a State to tax a corporation, though it be engaged in interstate commerce, so long as the commerce itself is not burdened by State exac-tions which interfere with the exclusive federal authority over it, of the right to prescribe the conditions-upon which a foreign corporation may do business within the State, that a resort to the receipts or capital employed in part at least in interstate commerce, when not taxed as such, may be taken as a measure of the tax imposed, then proceeds to state the facts upon, which the cases of Western Union Telegraph Company v. Kansas and Pullman Company v. Kansas were decided. The court thereupon points out that the business of these companies was commerce; the same in-strumentalities and agencies carrying on in the same-places the business of State and interstate character, with no separation of the intrastate business from the interstate business by the limitations of State lines in. its prosecution. The- court then says:
*515 “An examination of the previous decisions in this court shows that they have been decided upon the application to the facts of each case of the principles which we have undertaken to state, and a tax has only been invalidated where its necessary effect was to burden interstate commerce or to tax property beyond the jurisdiction of the State. In the cases at bar the business for which the companies are chartered is not of itself commerce. True it is that their products are sold and shipped in interstate commerce, and to that extent they are engaged in the business of carrying on interstate commerce, and are entitled to the protection of the federal constitution against laws burdening commerce of that character. Interstate commerce of all kinds is within the protection of the constitution of the United States, and it is not within the authority of a State to tax it by burdens and laws. From the statement of facts it is apparent, however, that each of the corporations in question is carrying on a purely local and domestic business quite separate from its interstate transactions. That local and domestic business, for the privilege of doing which the State has imposed the tax, is real and substantial, and not so connected with interstate commerce as to render a tax upon it a burden upon the interstate business of the companies involved.” Baltic Mining Company v. Mass., 231 U. S., 78-86, 34 Sup. Ct., 19, 58 L. Ed., 127.
The tax imposed by Massachusetts involved in the Baltic Mining Company and S. S. White Dental Company Cases was an excise tax to be paid annually, and
The present case must be determined upon its own facts. There is a strong similarity in facts here to the business of the Baltic Company and the Dental Company. All are engaged to a large extent in interstate commerce, but they are each primarily manufacturing corporations, and engaged in selling their own products upon the market. In those two federal eases neither company owned a factory in Massachusetts, but each had local storehouses where local sales were made. They could have omitted the local business if they saw proper, and thus separated the local business from the interstate commerce. This was entirely optionary, as it is in the case at bar. A sharp distinction exists in the Pullman Company and the Western Union Telegraph Company cases, in that those concerns were public service corporations and were bound to accept local business.
One important feature in the case at bar is that it is engaged in manufacturing black gunpowder at its factory at Ooltewah, in this State, and it also has six storage magazines where explosives are kept. It also has its places in this State in a number of cities where local sales are made. It occurs to us that any part of this local business is of such character as to render
Many authorities are cited in briefs, but those herein mentioned are conclusive, though we have not attempted to state authorities in full on the subject. We have been content to refer only to such federal opinions as served to illustrate the subjects under discussion. Other cases bear out the conclusion reached.
Decree of chancellor affirmed.