*1 Supervisors Teche Lines, Inc., v. Board Forrest County.
' (Division May 23, Suggestion B. 1932. of Error Sustained Oct. 1932.)
[142 30064.] 24. No. So. *2 1932.)
(Division B. Oct.
[144 30064.] 486. So. No. *3 opinion,
For former see 24. So. Hattiesburg, Wills, J. Stevens, J. M. T. of Jack- appellant. son, *6 Eager, appellee.
Watkins, & Watkins Jackson, *8 Argued Morgan orally by Stevens, J. J.T. Wills and appellee. appellant, Watkins, Sr., for and W. for H. opinion J., Anderson, of court. delivered the the appeal judgment This is an circuit court from the county affirming of of Forrest board su- an order pervisors back-assessing appellant county of that- year right taxes for to do 1930 on franchise its county. in the business July gave
On 21, collector notice the state tax 1931, writing county to to back- the tax assessor of Forrest appellant years assess for taxes for the giving it a franchise, on the value its operate transportation passengers a bus line for Highway through county, over No. a distance said per aggre- at mile, thirteen thousand dollars miles, one gating years, for each of said thirteen thousand dollars totaling thirty-nine The assessor, dollars. thousand pursuance on the notice, of the made assessment personal way and filed roll of additional assessment gave supervisors, notice same with the board objections would heard at the assessment appellant, September, meeting The of the board. objections attorneys, through filed written as- its supervisors order an entered sessment. The board of years eliminating and 1929 for the the assessments year fixing confirming for the assessment through miles the franchise the thirteen value making per county dollars mile, at four hundred Forrest *9 a total valuation of five two dollars. thousand, hundred From appellant that appealed order of the board to the judgment circuit affirming court, where a was entered the supervisors, order of judg- the board of from which appellant ment prosecutes appeal. the this juryA place was waived and the trial took cir- the judge. cuit upon court before the The facts which the case was tried are embodied in the order board of of the supervisors approving agreement the and an assessment, attorneys respective par- representing between the the leaving parts, ties, which, off their formal follow in the order stated: day appli-
“This came cause on to be heard on the cation of W. J. Tax Miller, State for con- Collector, the against firmation of additional assessment made the pursuance Teche Lines, Inc., Y. Ford, Assessor, E. and notice at the instance Tax Collector, the State July upon objections excep- dated and the and objections tions of the Teche Lines, Inc., thereto, which writing are in and on with the file clerk the board. appearing It to the board and the board finds: year That for 1930', Lines,
“1. the entire the Teche operated passenger Inc., owned line, and bus under necessity granted certificate of convenience and by Mississippi under Commission, Railroad and being chapter virtue of Laws of 128, section regulating Mississippi 1930', and section Code transportation providing licensing com- of motor upon highways panies, operating Mis- for hire sissippi, or franchise the said certificate that under carry- engaged business of Lines, Inc., said Teche along Highway ing persons No. hire over and Mississippi County, Lauderdale from line of the Alabama Mississippi, County, Pearl River Louisiana line of to the through Forrest Coun- which extended thirteen miles of Highway ty 11; No. over said said, did not own Inc., Lines, Teche That the said “2. year year during certificate or franchise 1928 or the operate only year 1929 or 1930; hut same, for the said in the Teche was domiciled Lines, Inc., State of no in Forrest Louisiana, owned County other franchise, than said certificate Hattiesburg depot Hotel in Forrest lessor of its *10 County paid depot all ad or sta- valorem on said taxes tion, and no taxa- made hind of return for ad valorem upon tion of and for its said or franchise certificate any physical property year of in for the the 1930' Mississippi, paid although highway privilege taxes it all required chapter of it Laws 230', under virtue of and being chapter (section of 1928, 1930 article Code seq.), Highway of 5602 et and No. 11 the that is one High- highways receiving Federal Federal Aid under the way (23 1-25); Act secs. HSCA, through- appearing
“3. board, It that further to the year Inc., Lines, out the entire Teche 1930, the said operated and said of convenience under certificate necessity in commerce both interstate and intra-state express, carrying passengers, baggage light no but and freight, Birmingham, from on the north Alabama, through For- said south, Louisiana on Olrleans, New depot County, and maintained a and that it had rest County, Hattiesburg, place Forrest and of business charge Mississippi, for tickets agent, of its where transportation its and where sold, were said line over stopped- regular transportation sched- on busses motor up passengers; picking that it letting and for out ules County, stops in Forrest additional or more had one Mississippi. during the entire appearing board that
“4. It it, said before introduced year from evidence of year throughout ofwas franchise dollars, hundred two thousand,- of five excess value in being Mississippi, County, in Forrest miles thirteen for per at four apportioned by hundred dollars tomile, he county. tax of collector said appearing “5. It further board that the Teche foreign organized corporation, Lines, Inc., and was a under the laws of State of main- Louisiana, where place principal tains its business; domicile and that of duly permitted, throughout it was however, the entire year Mississippi, of 1930 to do business in the State of and to exercise from franchise, said which extended County, Mississippi, Alabama line Lauderdale to the Mississippi; County, line Louisiana in Pearl River appointed agent process, as its service as re- it quired by Mississippi, of the State Carl statutes Bay Mississippi. Louis, is, therefore, Marshall It St. adjudged: ordered
“(a) E. V. made That additional assessment request W. Assessor, at the instance J. Ford, July be and Tax Collector, State as Miller, year hereby and confirmed for the ratified Highway along No. over and miles a distance thirteen *11 Mississippi, County, of four at valuation a 11 Forrest per mile. dollars hundred respects
“.(b) assessment And in all other said that hereby aside.” and set disallowed, revoked is and attorneys represent- agreed by and between the “It is plaintiff above entitled ing in the the defendant and the purposes other, no of trial and this for the that cause, testimony, expense producing of the cost and save and to introduced Tax Collector has State Miller, J. that W. prove in the order facts set out competent the evidence to County, Supervisors by Forrest of of the Board made affirming additional as- the case, appealed from in this County Forrest of assessor tax made sessment purposes trial, of this plaintiff, for that and for the any testimony introduce to Inc., Lines, declines Teche order, in but relies said out so set facts to contradict upon objections exceptions its ac- to said facts on and irrelevancy, incompetency, count of the and immaterial- ity argue and reserves to as to thereof, same any insufficiency law or matters of of said facts to support appealed expressly under- the order from. It is prejudice agreement stood this is without to proceeding rights any Inc., in Lines, of Teche other any pending cause now in other other counties, ’’ whatsoever. years Appellant’s objections, eliminating for the those substantially 1928 and which are not are involved, (1) public as follows: The certificate of convenience ap- necessity to issued the railroad commission pas- pellant operate a a carrier of to' bus line as common County, sengers through including Forrest state, this foreign corporation having appellant granted was as a principal place state, of domicile or this no business section 7120 under and is mere license or certificate no taxation and has situs the Code county county, tax assessor of that Forrest therefore the (2) jurisdiction make the assessment. was without such 3136 of certificate Under section the Code of necessity appellant, public issued convenience and by ap- intangible right owned is if at an all, corporation, pellant, foreign the laws of and under (3) exempt The assessment from taxation. arbitrary is an a mile at thousand dollars fixed one (4) con- The certificate fictitious valuation. necessity, has its situs all, at if taxable venience and incorporated appellant is where the taxation in Louisiana place principal true, this is business, and has its place principal appellant bus- especially has no since engaged interstate and but in both state, in this iness operating a from New Or- line bus intrastate business *12 Mississippi .on through of the state Louisiana, leans, (5) Birmingham, The Highway Alabama. 11, No. necessity is a assessed and convenience of certificate 608
single operation through unit for the of bus line Mis- a sissippi from in Louisiana to New Orleans the state of Birmingham counties; Alabama, and not divisible is county appellant and in the of Forrest has office or no place tangible subject property of or business taxa- Appellant proprietary rights Highway tion. has no exercising merely granted No. but a license operate bus line railroad commission of this state to a highway, over the entire and not such as is under taxable because the could not sold be (6) appellant’s fran- tax warrant. The taxation of commerce, chise would on interstate burden therefore violative of article section sub-section of the of the Federal Constitution, Federal and likewise expressly Highway (section 9]), [23 USCA, Act sec. highway providing that all construction reconstruc- any provisions free tolls tion under its shall be from would be tantamount kind, and the assessment involved a toll. judgment conclusion that We reached the have gave opinion judge ought an The circuit to he affirmed. upon grounds writing he which in judgment: he set out which opinion part made a This was based sound, reasoned, and clear, record. We think it well adopt as the do than that we could not better opinion Leaving of facts the statement off of this court. already above, out been case, set of’the which have opinion follows: designated
Though franchise, the cer does as a not necessity possess convenience tificate so, property? if And Is it a franchise? elements par. (notes) R. A. L. In 57 it be classed? shall how leading groups from page definitions author 35. quoted is one Typical these definitions authorities. of Bank J., the case Taney. from taken from Augusta Ch. Earle, “Fran L. 274: Ed. 13 Pet. v. by government privileges special conferred are chises
609 belong upon citi- not to the individuals, and which do right. country, generally, It is zens of of common it should be essential character of a franchise that to the authority, grant sovereign coun- and in this a try, from the from derived no is not franchise can be which held, a law of the state.” 34 So. 526, La. Assessors,
In Maestri v. 110 Board right pos franchise the it is “To be a 658, 661, said: as be exercised without sessed must be such cannot privilege express sovereign power permission of the —a legally immunity public cannot be or which nature legislative grant. v. Minnesota State exercised without Mfg. R. 3 L. 1020, 41 N. 213, 40 Minn. W. Co., Thresher N. W. 95.” 510; 366, A. v. State, Dike 38 Minn. par. According Cooley Taxation, vol. to on (1) may The three classes: divided into franchises corporate necessarily the “to This is franchise be.” by granted privilege or is a creative franchise. It legal sovereign indi- one, as with to individuals to act viduality. (2) under “to do.” Included The franchise perform organization, privilege, to this class is after really a “combination certain or It is acts business. embracing things independent which the all Franchises “Special corporation power (3) given fran- to do.” right to accorded defined as chises have been well enjoyed privileges possess corporation not a certain corporations illustrated, general.” This class high- privilege says to use “the author, ways,” designated franchises. as street Refining v. al. Cleveland Co. et in Gulf court,
Our line followed the 160, has al., Co. 108 So. Trust et classes, viz.: into that divide franchises two authorities special (2) general or (1) Corporate franchises, or secondary franchise former is the franchises. “The rights corporation, aré certain the latter while exist as a corporations, existing upon privileges conferred municipality to streets of to use as such pipes lay poles or string tracks, erect or wires.” The secondary case further special holds that franchises may mortgaged be sold or general power under disposál property granted corporations, and under - special our statutes such franchises are liable to- be seized judgments. and sold in satisfaction of
In Adams v. Bullock, 94 Miss. 19 Ann. So. *14 dealing special Cas. the court was awith franchise operate plant to city Vicksburg a waterworks in the of privi and to use the streets. The held court that such lege personal property. is a franchise and is by principles
Tested these I law, must conclude granted right- that the defendant a was substantial —a right high- franchise —a ways, use to of the main one state’s public expense, carrying built at for on its busi- ness. (now 6 and
Sections 7 of the act Code secs. 7121) granting adequate protect the are to franchise against competition. defendant Section 9 unreasonable (now right 7123) act the the Code sec. confers privi- assign, on defendant to or sell, lease, transfer the lege, property,” by “as other authorization of the com- by mission. This or exists sanction of franchise protection the under laws of receives may figured property an is be item state. of It a as inventory earning dividends, -in value of assets property, and or as loans. It is therefore collateral for supra, Bullock, v. must be declared be under Adams property. personal property requires all Constitution of our
Section Con- 178 of true Section at its value. be assessed contemplates for taxation the assessment stitution corporate Constitution Section franchises. gain pecuniary corporations property requires for as individuals. -the same be assessed con- be franchise that if however, contended, is It intangible, owned property, it is as nevertheless strued by exempt a under sec nonresident, and from taxation provides plan tion Code 313G, of 1930. This a section assessing (a) corporations, (b) nonresident domestic corporations, (c) exempting certifi shares or corporations by cates of stock owned individuals. when corporations, As to both resident and nonresident applies, same be the basis assessment and which shall same three as individuals. And likewise each of the corporations, corporations, classes, resident nonresident exemptions. enjoy In and individuals, should same any intangible if other mentioned words, of the individual, by exempt statute when owned an (such intangible exempt property) if owned shall by corporation, To resident nonresident. whether adopt exempt intangibles if all defendant’s view would corporation, would neces owned but not nonresident sarily exempt intangibles by a if owned resident such thereby corporation corporation, placing a nonresident Surely not was in a favored class. such discrimination exemption legislative from tax A claim of intent. enlarged It ation should construction. never be *15 grant. presumed granted all it intended to the County 598, Box 125 Miss. 88 Co., Adams v. National exemptions granting must from taxes So. 168. Statutes against exemption strictly construed the claimed be 71 McGowen, 92, Miss. So. v. 111 New Standard Club 289, 1918E, Ann. Cas. 274 being urged in Louis- domicile
It is that defendant’s its in- taxation for all iana, the situs for this would be property, tangible “mo- maxim, under the common-law sequuntur personam.” bilia Express U. Auditor, Ohio 165 Co. State
In Adams v. appears 683, Ed. it that the 41 L. 17 Ct. S. S. express operating company under a franchise was corporation though Ohio, granted by had the of the state York. Ohio New The state state of the its domicile operating in for that franchise the for taxation assessed express company state. The applied rehearing for on an adverse decision, in 166 U. S. Ct. S. 607, 41 L. Ed. writing 965, Mr. Justice Bírewer, for the court, said: intangible proper “Where is the situs of this ty? simply Is it where its home officeis, where is found directing thought the central workings which the controls great of the gave or in machine, the state which it its cor porate intangible property is franchise; or that dis tangible property tributed wherever its is located and Clearly, its work is done?” as we the think, latter. again: may principal And “It be true that office corporation of the inis New for York, and that certain purposes the maxim the common law ‘Mobilia was, personam sequuntur;’ but that maxim was never uni- application, versal and seldom interfered with the quote closing paragraph of taxation.” I of the opinion: say “In us conclusion, let emi- nently practical age; recognize things that courts must they possessing are, as and as a value which accorded to spun them in markets of no world; and that fine- about situs should
theories large corporations, interfere enable on whose business these is carried bearing through many escape states, to- each from a fair of taxation distribution state such burden as property among value of their those states actual requires.” grant It was franchise is a state.
Defendant’s wholly carrying purpose within on business power sovereign over of the state extends the state. The territory sovereign under its state, within all lawfully may power all within tax tax, Savings Society Coite, 6 Wall. v. state. L. Ed. 897. may personal property purposes taxation,
For the may taxed, its on separated owner, and be from its *16 place although place not is, where account, at v.Co. Pullman’s Palace Car domicile. owner’s of the
613 Pennsylvania, 141 U. S. 11 613; S. Ct. 35 L. Ed. State Railroad Tax Cases, 92 Ed. 663. U. S. 23 L. See, note of also, 7 Ann. Cas. 519. generally accepted grantees
It seems to he the
rule that
sovereign
of franchises receive the
from the
sub
same
ject
power
to the
of
state’s
taxation unless otherwise
specially provided. Maestri Board of
110
Assessors,
v.
La. 517,
Assessment in the of a franchise, absence stat authorizing challenged. ute Knox is State rel. v. it, ex Union Tank Car 151 Miss. is Co., So. cited support in of a this contention. of Quite different class property was under The there consideration. tank cars county, any were that movable, rest in one so never at taxing might they day could situs be ascertained. One day county, too, be in in another; then, one next facts the number of was unknown. Under these the cars applicable the court class of held that a statute that property species necessary. of we was Here have property whose fixed within state. situs is localized or rights several in It is exercised immovable. Its are operates, through one line counties which the bus mileage county. fixed. there is which is in Forrest Its by- county per is established Its value mile Forrest testimony agreed facts. statement as shown collecting difficulty affect the does not The the tax Constitu power tax. Section of the state to Many property within state. tion inclusive all is un property were use come into classes that have adopted. Automobiles, air 112 was known when section planes, certainly not airports, garages, were etc., yet con would no one makers, minds of the Constitution wisely Section to tax them. tend a needed statute its true at be assessed provides shall all duty statutory assessor to of the made the value. It province failing which, it is property, assess all assessed. order it tax collector of the state *17 614 prior
Defendant also insists that to the enactment authorizing the motor statute in the franchise here question, right highways it had the to use the without subject only road, interference, the law etc., to of the powerless and that the state is or interfere to restrict highways. with interstate commerce over the If defend engaged solely transportation ant’s busses were in highways, unquestionably interstate commerce over the position supported by this would be author sound, Michigan ities. Public Co. v. 266 S. Duke, Utilities U. 45 570, S. 69 Ed. 191, Ct. L. 36 A. L. Buck 445, 1105; R. Kuykendall, v. 267 U. S. 45 S. Ed. Ct. 69 L. Maloy, 38 A. L. 286; & R. Bush Sons Co. U. v. 267 S. 45 S. L. Ct. 326, 327, 627. Ed. sovereign power
Until the state elected to exercise its by regulating engaged busses in intrastate such business, common busses course could with the make use highways. chapter (now of the But 128, Laws seq.), expression Code 1930, section 7115 is an of the et power effectually By will and it the state. this statute says highways, at the bus “Here are our built lines, carry- public expense: you may enormous use them — ing your part, on convert means business, them, into a enriching protecting police your The treasuries. disposal. power your pro- Ylouwill of the state is at competition.” sovereign tected from unreasonable The' grant special vouchsafing privileges “certi- in the these ficate of convenience”—the franchise.
Merely engaged busses because defendant’s are deprive does both and interstate business not intrastate conferring right of the to tax the franchise the state transportation. authority operate It is intrastate As said on interstate commerce. not a tax Express. Supreme in Adams Court Co. States United “Again again supra: has Auditor, v. Ohio State proposition no can in- state affirmed the court through imposition commerce interstate with terfere of a tax, whatever which is in effect called, name privilege transacting tax commerce; such upon as has often affirmed that such restriction power of commerce to interfere with interstate degree abridge does not in the of a state least tax at full all used their value the instrumentalities for such commerce.” Pennsylvania, 141 II. S.
Pullman’s Palace
Co. v.
Car
L,
case
11 S.
Ed. 613. In the last
Ct. 876, 878, 35.
*18
equally
that there
cited the court
“It
well
said:
is
stated
nothing
is
United States
in
or laws of the
the constitution
property
prevents
taxing personal
which
a
from
employed
foreign
other
like
or
interstate
commerce
personal
jurisdiction.
Delaware Rail
within its
S.),
(21
(85
888,
232
L. Ed.
road Tax
206,
U.
18 Wall.
896);
Teleg.
U.
464
460,
105
S.
Western U.
v. Texas,
Co.
Ferry
(26
1068);
v.Co.
Penn
Ed.
Gloucester
1067,
L.
(29
sylvania,
Ed.
L.
Ct. 826
211, 5 S.
196, 206,
114 U. S.
Teleg.
164);
Massachu
Co. v.
Western Union
158, 163,
793);
(
Defendant’s asserted joint highway of both the cost at cause the was built designated a is and hence as States, state and United Johnson, highway, v. in Alward is denied federal-state L. 75 A. 496, 75 L. 273, 51 Ct. S. Ed. 282 U. S. Treas., 9.R.
Lastly, certificate or franchise that the it contended is operate right to grant the exclusive defendant not does to highway; is the controll- this that said business over its ing, question quote point determining I value. On “ granted right The A. 36: 57 L. R. note from a case corporation for formed authority domestic to a 616 purpose establishing maintaining and booms
navigable
public highways,
streams made
and of collect
ing
logs
tolls for
privilege
and timber
ais
boomed,
although
franchise, and is
as
taxable
such,
it is not ex
open
every person
clusive, and is
common
to
corporation
acquire
authority.
under the same
Che
County,
halis Boom Co. v. Chehalis
24
63 P.
Wash. 135,
following
Light
Commercial Electric
P.
v.
& Co.
(57
78);
21
Judson,
Wash.
829
L. R. A.
P.
Spokane County,
Edison Electric Illum. Co.
v.
Wash.
168,
See, also, of Justices New re ported in 84 N. H. A. a 557, 559, lucid questions and learned discussion of raised in this several question opinion record. On “It the last is holds: open also said is common, still is since any permission. one to obtain . . . It is con like finding proposition practical ceded can that as no such because, it said, the business is natural obtained, is monopoly monopoly. policy keep it a The has been to monopoly sound economic not in reasons. The good of nature but business. Its maintenance course by furnishing protec designed promote economies *19 any prompted by against things nature. But in tion monopoly it artificial, is event, whether the natural or right. belong utility It as common does not to the of acquired by grant. because It is desired is the state’s rights; and field common it out the of has been taken of may give it value.” its exclusive character (A) major questions Summarizing, are: decided secondary special question or is a in certificate The property personal (B) of nature is in the It franchise. purposes (C) is taxation for of situs and taxable. The property particular Mississippi, of and the situs in county. Con- (D) 112 of Section is Forrest involved adequate present together laws, is our with stitution, (E) machinery legislative Assess- tax it. to new' without
617 imposing interstate ment of the is tax or franchise not a commerce. my opinion the it herein,
For the reasons indicated is supported supervisors of is the board of order final. law and the tax should made the facts be and Affirmed.
Ethridge, opinion J.,P. of delivered the court on suggestion of error.
When this was heretofore, and decided case considered appellant’s argument was addressed almost exclu- sively power appellant’s to the franchise and tax Mississippi engaged on and its in both interstate lines, intrastate mingham, between New Bir- commerce, Orleans, La., and county through passing
Ala., Forrest Mississippi. of We had then and have no doubt but now property regardless taxable, taxable, and that special provided whether or not a scheme is under sec- authorizing special 112 tion a mode the Constitution cor- other valuation assessment for railroads and porate property property, species particular be- longing persons, corporations, situ- or associations not wholly county. ated in one provides an assessor of the Constitution
Section provide county, and section and section each property corporate individual; for taxation of both property provides what while section Code except being property exempt, taxable be all other shall that named. provided special mode Legislature has not
When the property situ- dealing corporate individual with supervisors county, the board in more than one ated county county can determine assessor aof and the statutory scheme under assessed value *20 property although assessing generally, property situated iu may two or more counties have value as segregated unit They different from the items thereof. might process ascertaining use allocating the same and among that value the different at counties, or, least, say part what of that value would be allocated to county making the assessment. suggestion suggested on
However, error, it prop- that, under sections 3200'and 3208, Code 1930, this erty, for taxation, should be assessed the tax com- property. as argu- mission state assessor of such This original ment argument was not addressed to us in the argument being property the case, the was not all. taxable at These sections of the Code read follows: as “3200. The members of the tax commission are public constituted state assessors railroads and other corporations, they upon receipt service making and or shall, provided
of the schedules hereinafter for, assess property telegraph, telephone, sleeping of railroads, express power light companies car, electric and and public corporations other service liable taxation in affixing property the state, its value true so such just taking proportion of taxation, shall bear its into con- capital sideration the franchise value of the and the en- gaged in and state; the business the state assessors may corporations of railroads and other service necessary proper adopt and and further rules other them, ascertain value of to be assessed capi- including and amount of the value of franchise engaged tal in the business this state.” sleeping palace Telegraph, express, car, car, “3208. telephone, gas (natural dining companies, and car and railway (in- artificial), suburban, interurban, street, or cars), companies operating cluding as street motor bus light power company any pipe electric line wholly owning property companies, one not situated shall, county in the taxation for ad valorem be assessed' tax commission- railroads, manner tbe state same as *21 perform same shall and the thereof, ers be assessors shall respect and railroads, case of as in the duties thereto and at The clerks the same time and with like effect. required perform like duties as tax shall collectors case railroads.” Considering together, that, we think al- sections these they though specifically fall named, bus lines are not corporations,” language public within service “other they and should tax com- that be the state assessed body In tax com- mission. such such cases, a as the impartial judg- mission, is calculated an better reach impartial justice ment, and to do service between companies taxing and districts. error, suggestion of the
After careful consideration commission, we reached the conclusion that the have tax supervisors not the tax assessor and and county, board authority assessment, has the make the supervisors of the board of and the assessor tax jurisdiction county deprived of have been to make to, of the sections above referred assessment virtue power upon the state tax commission. which confer such suggestion sustained, will therefore of error The judgment of court below reversed proceedings dismissed.
Suggestion sustained. of error Life v.
Stonewall Ins. Cooke. Co. (Division Suggestion 1933.) B. Nov. 1932. of Error Jan. Overruled
[144 29987.] 217. No. So.