25 S.E.2d 699 | Ga. | 1943
1. A municipality may levy no taxes upon its inhabitants or upon property therein, except where the power to do so has been plainly and unmistakably conferred by the State.
2. Personal property, in the absence of any law to the contrary, follows the person of the owner and has its situs at the domicile of the owner. But for the purposes of taxation it may be separated from the owner, and it may be taxed on its account at the place where it is actually located or used.
3. While it lies within the power of the State to separate for the purpose of taxation such situs from the domicile of the owner as to that class of personalty which is kept in transit and may not be said to have any one fixed location, and to provide for its assessment for municipal taxation, unless it does so the municipality may not declare such a separate situs and thus render such property subject to taxation where it otherwise should not be so.
4. Accordingly, in this State no general statute having been enacted which would authorize it, a municipality does not, under its charter granting only general power, have the authority by "formula" to assess for taxation trucks owned by a non-resident corporation which move into and out of the municipality in interstate commerce, but which have no fixed location within the municipality, upon the basis of the "average number" which might be treated as being at all times within the municipality.
The facts as stipulated and as stated in the petition and determined *811 upon demurrer are substantially as follows. The plaintiff is a corporation under the laws of North Carolina, with its principal office and place of business in that State. It is qualified as a common carrier of property for hire, and carries on business among the States of North Carolina, South Carolina, and Georgia, operating trucks and trailers along various routes, these trucks being regularly driven back and forth along its routes of traffic in these States, and in interstate commerce. It maintains a terminal in the limits of the City of Atlanta, and owns and uses some property within the city in connection with its business, which it returns for taxation and which is not involved in the present litigation. After declining to make a return of the "average number of its trucks and trailers habitually in the limits of the City of Atlanta," the plaintiff, in response to a request of the defendant, furnished to the city authorities as information "the daily average number of its trucks and trailers or main-line equipment continuously used in its business in interstate commerce in and out of Atlanta," the list showing five such trucks and trailers. It was agreed "that of this list one of such units, that is one truck and trailer, may be said to be continuously within the City of Atlanta on an average, and the average value of such a unit would be the sum of $1898." It was not contended that any of the particular trucks shown on such list was in Atlanta on the taxing date, but it was agreed "that these trucks were those which were continuously used by the plaintiff in its operations in interstate commerce, and which came in and out of the city daily," and that one would be a fair average which might be said to be habitually in the city. The trucks were operated on fixed schedules, and remained in the city only long enough for loading and unloading. They were not assigned to any specified route, and except in case of emergency they were serviced in High Point, North Carolina. Taxes were paid on all such trucks in North Carolina, the domicile of the corporation. The issue is purely one of law, and narrows considerably under the able briefs and arguments submitted. *812 The city contends that under its charter, which provides that its mayor and council "shall have full power and authority and they shall provide by ordinance for the assessment, levy and collection of an ad valorem tax on all real and personal property which under the laws of this State is subject to taxation within the incorporate limits of said city," it is authorized to collect a property tax upon the basis appearing in the statement of facts. The ordinance relied upon by the city does not undertake specifically to reach such a situation or to establish any "formula" for taxing such movable personalty in transit, but provides a levy on "all real and personal property which under the laws of the State and under the charter of the city as amended is subject to taxation by the city." The motor corporation, while conceding, under authorities which will be mentioned, that the State has the power to render subject to taxation property moving in and out of its borders as here shown, contends that in the absence of a statute which would have the effect of giving a taxable situs to such personality, by changing the rule that unless actually located within the State it would follow the domicile of its non-resident owner, the municipality is wholly lacking in the authority claimed by it. In the presentation of the case there has been much helpful discussion with reference to the principles that have by now been laid down with regard to the power of a State to tax or authorize the taxing of that class of property involved. Some attention will later be given to the decisions from various jurisdictions dealing with that question; but we have reached the conclusion that the primary question here to be determined will depend upon the laws of our own State and the decisions of our own courts, although it is admitted that this is a case of first impression so far as these facts are concerned.
At the very outset it may be observed: "A municipal corporation can levy no tax, general or special, upon its inhabitants, or upon the property therein, unless the power to do so has been plainly and unmistakably conferred by the State.Southern Express Co. v. Rose,
A further rule of ancient origin and of equally general application is that personalty as respects its situs for taxation follows the domicile of the owner. County of Walton v. Countyof Morgan,
But it is contended by the city that since the State by its charter provision granted to it the right to levy "an ad valorem tax on all real and personal property which under the laws of this State is subject to taxation within the incorporate limits of said city," and since under our general taxing statute (Code, § 92-101) all real and personal property owned by residents or non-residents is liable to taxation, the city may proceed as it has undertaken to do. If the property of the motor corporation sought to be taxed was located within the city, or, under such rules as announced in Suttles v. Northwestern Mutual LifeInsurance Co., supra, had acquired a situs within its limits, it would of course be subject. It is to be remembered, however, that the city is not undertaking in this case to tax any specific property "within the incorporate limits of said city." In fact it is not undertaking to tax any specific property anywhere, but rather a "daily average" of the composite value of such property of the motor corporation as may be moved within *816
and without the city. The city does not contend that the trucks being moved into and out of its limits were physically present on the taxing date in such a way as to render them taxable under ordinary rules as the property of a non-resident. The assessment is based upon an average of five trucks and upon an average value of one of such trucks, as we take it, virtually conceding that no one of the trucks would be subject as such to the ordinary property tax. While it is true, as was held in Johnston v.Macon,
In Mississippi, where the general taxing statute is similar to our own, a statute was enacted providing for the taxation of movable railroad property. Previously such property had apparently been left to stand under the normal rules; to be taxed if it had acquired *817
a situs under the rule; otherwise to follow the domicile of its nonresident owner. After the enactment of their statute the taxing authorities sought to use its formula and machinery to assess the Union Tank Car Company on account of taxes claimed for previous years. That resulted in litigation reported in State ex rel. Knox v. Union Tank Car Co.,
"`This peculiar property, which has furnished the topic of so much discussion, is held to be situated, in the absence of a special statute, in the town where the principal office of the corporation is; that is, at the corporate residence. Without the help of a statute, it is incapable of acquiring a permanent locality or situs separated from the owner's residence,' citing: `Mohawk etc. R. R. Co. v. Clute, 4 Paige [N. Y.] 384; Appeal Tax Court v. Western Md. R. R. Co.,
"A dependable authority supporting this view is Marye v. B. O. R. R. Co.,
The Mississippi court quoted further from the Marye case, where it was pointed out upon authority that before such property otherwise having its taxable situs at the domicile of its owner could be subjected to taxation in Virginia, an appropriate
statute would be necessary. To follow the rule somewhat further, in Mississippi we find in City of Jackson v. Dixie Greyhound Lines Inc.,
The city places strong reliance upon Johnson Oil Refining Co.v. Oklahoma,
Another case relied upon by the city is Union Tank Car Co.v. McKnight, 84 F.2d 421. In that case tank cars belonging to a New Jersey corporation were leased to an Illinois refinery for transportation of petroleum products in interstate commerce, and the Circuit Court of Appeals held that under the Illinois statute, the terms of which, it was said, describing taxable property, "are most comprehensive and therefore are capable of incompassing rolling stock belonging to a foreign corporation habitually found in the State," the taxing of the average number of cars present in the State could be sustained. For interpretation of the State statute they relied upon Keith Railway Equipment Co. v. Board of Review,
Thus from what has been said we come to the conclusion as announced by Simpson, J., of the Alabama Supreme Court in City of Bessemer v. Southern Railway Co., supra, that while the principle on which this character of taxes has been sustained is that it lies within the power of the State to separate the situs from the ownership of personal property as to that class of personalty which is continuously kept and used, it should pay a part of the burden of taxation; and while it might be within the power of the legislative department in fixing the class of property and providing for its assessment to make provision for municipal taxation, unless it does so, the levying of such a tax by the municipality would be beyond its power. The State could not permit the municipality to assume such a legislative function as to change the existing tax situs. Compare Henderson v.Heyward,
Reversed. All the Justices concur.