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ble property of the express company is
subject to taxation it is unjust to impose
the additional tax on its business; but
?11 know that express companies have but
little tangilile property subject to taxa-
tion, and the practical methods by which
such companies can be afforded an op-
portunity to contribute their just share
of the public l)urdens and pay for the
protection which the public gives is
througli excise taxes or license taxes on
their business. Pacific Exp. Co. v. Sei-
I)crt, 142 U. S. 339, 35 L. Ed. 1035. 12 S.
Ct. 250." Leavenworth v. Ewing, 80
Kan. 58, 101 Pac. 664.

55. State v. Northern Pac. Exp. Co.,
71 Pac. 404, 27 Mont. 419, 94 Am. St.
Rep. 824.

56. Leavenworth v. Ewing, 80 Kan. 58,
101 Pac. 664.



3961



CARRIERS.



3578



Tax on Gross Receipts. — A state has no power to impose a tax upon the
receipts of a foreign express company for the transportation of merchandise re-
ceived out of the state and dehvered out of the state, and simply carried through
the state, as the law imposing such a tax is an interference on the part of the
state with the power of congress to regulate interstate commerce.^" Act Mis-
souri May 16, 1889, which imposes on companies carrying goods "by express, on
contract with any railroad or steamboat company," a tax on their "receipts for
business done within this state," is not an interference with interstate com-
merce. ^^ The provision of the United States constitution that congress alone
shall have power to regulate commerce with foreign nations and among the sev-
eral states is not violated by a tax levied by the state upon the gross receipts of
an express company whose business consists in receiving goods to be transported
to points outside the state, to which its line does not extend. '""'^

Tax on Intangible Property. — A state statute imposing an alleged franchise
tax on corporations which, in etTect, is not a franchise tax, but a tax on the in-
tangible property of the corporation not otherwise taxed, is not unconstitutional
in its application to an interstate express company as an unwarrantable interfer-
ence with interstate commerce.*^" A state law, taxing the intangible property of
express companies in proportion to mileage in the state, as compared with total
mileage, is not an interference with interstate commerce.*^ ^

Tax on Express Wagons. — New York city ordinances, regulating express
wagons using the streets of the city, requiring that they be licensed and marked
with the word "express" and with their official numbers, that they be regularly
inspected and pay a license fee of five dollars for each wagon, that the drivers
shall also be licensed and pay a license fee of fifty cents, were reasonable and ap-



57. Tax on gross receipts. — Indiana v.
American Exp. Co., 7 Biss. 227, Fed. Cas.
No. 7,021.

The earnings of nonresident express
company carrying goods between two
points within the state over route inci-
dentally traversing portion of another
state, derived from carriage within the
state, held within the gross receipts upon
which tax under Rev. Laws Minn. 1905,
§§ 794-1038, is based, without burdening
interstate commerce. United States Exp.
Co. V. Minnesota, 32 S. Ct. 211, 223 U.
S. 335, 56 L. Ed. 459, afihrming judgment
State V. United States Exp. Co., 131 N.
W. 489, 114 Minn. 346, 37 L. R. A., N.
S., 1127.

Including in gross receipts of nonresi-
dent express company under Rev. Laws
Minn. 1905, §§ 794-1038, earnings from in-
terstate shipments, where transportation
was performed wholly within the state,
held not an unconstitutional burden on
interstate commerce. United States Exp.
Co. V. Minnesota, 223 U. S. 335, 56 L.
Ed. 459, 32 S. Ct. 211, affirming judg-
ment, State V. United States Exp. Co.,
114 Minn. 346, 131 N. W. 489, 37 L. R.
A., N. S., 1127.

A nonresident express company, whose
receipts are largely derived from inter-
state commerce and investments in bonds
and lands outside the state, held not sub-
ject to the gross revenue tax exacted by
Laws Okl. 1910, c. 44. Meyer v. Wells,
Fargo & Co., 32 S. Ct. 218, 223 U. S.
298, 56 L. Ed. 445.



58. Pacific Exp. Co. v. Seibert, 142 U.
S. 339, 35 L. Ed. 1035, 12 S. Ct. 250.

Act Missouri May 16, 1889, which im-
poses on companies carrying goods, "by
express, on contract with any railroad or
steamboat company," a tax on their "re-
ceipts for business done within this state,"
is not an interference with interstate com-
merce. Pacific Exp. Co. V. Seibert, 44
Fed. 310.

59. American Union Exp. Co. v. St.
Joseph, 66 Mo. 675, 27 Am. Rep. 382.

The act of December, 1866, imposing
a tax on the gross receipts of express
companies, is not in contravention of the
constitution of the state or of the United
States, as regulating the "commerce
among the states," or imposing a duty
on "imports and exports." Southern
Exp. Co. V. Hood (S. C), 15 Rich. L.
66, 94 Am. Dec. 141.

Laws 1891, c. 14, §§ 65, 66, providing
for the taxation of the property of ex-
press companies, are not unconstitutional
because they enable the board of assess-
ment and equalization, in valuing their
property, to take into consideration their
gross earnings from contracts made w^ith
railroad companies extending to points
without the state. American Exp. Co. v.
State Board, 3 S. Dak. 338, 53 N. W. 192.

60. Tax on intangible property. — Coul-
ter V. Weir, 62 C. C. A. 429, 127 Fed. 897.

61. Tax on mileage basis. — Weir v.
Norman. 166 U. S. 171, 41 L. Ed. 960, 17
S. Ct. 527.



3579



TAXATION.



§§ 3961-3962



plicable to delivery wagons of express companies engaged in interstate com-
merce. "^^
Company Engaged in Both Interstate and Intrastate Commerce.— The

Mississippi act imposing a tax on express companies doing business in the state
is void as to all interstate transportation, but valid as to all business to be ex-
clusively performed within the state. A levy of a tax on a company being both
a local and interstate business will be enjoined until a separation between the two
kinds of business can be made.*^^ An express company is not relieved from a
license tax imposed with reference to intrastate business because also engaged in
interstate business. •'••*

Company Engaged Solely in Intrastate Commerce.— A license or privi-
lege tax imposed by a state on the business of an express company engaged solely
in interstate commerce, where there is no intention by this means to obstruct or
prohibit the business, is not invalid. ^^ A statute which in effect imposes a license
tax on express companies doing any local business, but none on those doing inter-
state business only, is not void as regulating interstate commerce.*'*^

Where Route Extends Short Distance Out of State. — Annual privilege
tax levied by city on business of express company, excluding interstate business,
is not invalid because transportation is over a route for a short distance passing
out of the state. '^"

§ 3962. Tax on Sleeping Cars.— A state statute imposing what was
called a privilege tax upon every sleeping car or coach, run or used upon a rail-
road in that state, not owned by the railroad company so running or using it, is
held to aft'ect a matter national in its character, requiring uniformity of regula-
tion, and therefore to be invalid, though not in conflict with any regulation pre-
scribed by congress.*^^



62. Tax on express wagons. — Barrett v.

New York, 1S9 Fed. 268.

63. Engaged in both interstate and in-
trastate commerce. — United States Exp.
Co. V. Hemmingway, 39 Fed. 60.

Act Mississippi, imposing a tax on ex-
press companies doing business in the
state, is void as to all interstate transpor-
tation, being in violation of the constitu-
tion, art. 1, § 8, par. 3, exckisively confid-
ing regulation of interstate commerce to
congress, but valid as to all business to
be exclusively performed within the
state. United States Exp. Co. v. Hem-
mingway, 39 Fed. 60.

64. Hardee v. Brown, 56 Fla. 377, 47
So. 834.

65. Engaged solely in intrastate com-
merce. — Jklenipliis, etc., R. Co. v. Nolan,
14 Fed. 532; S. C, 27 Alb. L. J. 217. 4
Ky. L. Rep. 840.

66. Osborne v. Florida, 17 S. Ct. 214,
164 U. S. 650, 41 L. Ed. 586; United States
Rxp. Co. V. Hemmingway, 39 Fed. 60.

67. Where route extends short distance
out of state. — Ewing v. Leavenworth, 33
S. Ct. 157, 226 U. S. 464, 57 L. Ed. 303,
affirming judgment, 101 Pac. 664, 80
Kan. .'■)8.

68. Tax on sleeping cars. — Pickard v.
Pullman Southern Car Co., 117 U. S. 34,
29 L. Ed. 785, 6 S. Ct. 635, confirmed and
applied in Tennessee v. Pullman South-
ern Car Co., 117 U. S. 51, 29 L. Ed. 791,
6 S. Ct. 643.

Where a state statute imposes a tax



of $500 per cent on sleeping car compa-
nies doing both interstate and intrastate
business, and makes no distinction be-
tween the two, such statute is an infringe-
ment upon interstate commerce and is
therefore unconstitutional and void. Al-
len z\ Pullman's Palace Car Co., 191 U.
S. 171, 48 L. Ed. 134, 24 S. Ct. 39. See,
also, Pickard v. Pullman Southern Car
Co., 117 U. S. 34, 29 L. Ed. 785, 6 S. Ct.
635; Fargo v. Michigan, 121 U. S. 230, 30
L. Ed. 888, 7 S. Ct. 857; Wabash, etc., R.
Co. V. Illinois, 118 U. S. 557, 30 L. Ed.
244, 7 S. Ct. 4.

Act Tennessee March 16, 1877, § 6
(Laws 1877, c. 16, p. 26), imposing a priv-
ilege tax upon sleeping cars owned by a
foreign corporation, and leased to a Ten-
nessee railroad corporation, which re-
ceived the transit fare, while tlie fee for
sleeping accommodation was paid to the
owner, and used for the transportation of
passengers into or out of or across the
state, is void, as an interference witli in-
terstate commerce. Pickard v. Pullman
Southern Car Co., 117 U. S. 34, 29 L. Ed.
785, 6 S. Ct. 635; Tennessee v. Pullman
Southern Car Co., 117 U. S. 51, 29 L.
Ed. 791, 6 S. Ct. 643.

The legislature of Tennessee has no
power to impose upon the Pullman South-
ern Car Company a privilege tax of $75
per annum for running or using sleeping
cars in the transjjortation of interstate
passengers, notwithstanding such cars
may enter or cross the territory of that



§ 3962 ■ CARRIERS. 3580

Engaged in Both Interstate and Intrastate Commerce. — Taxes exacted
from a sleeping car company engaged in both interstate and intrastate traffic, un-
der a state statute imposing an annual tax upon sleeping car companies doing
business in the state, which makes no distinction between cars used in interstate
traffic or in traffic wholly within the borders of the state, are void as an attempt
by the state to impose a burden upon interstate commerce. *^^

Engaged in Intrastate Commerce Only. — The privilege tax imposed on
sleeping and palace car companies carrying passengers from one point to another
within the state, can not be deemed an unconstitutional regulation of commerce,
because of the declaration in the constitution of the state, that sleeping car
companies are common carriers and subject to liability as such, where such pro-
vision is regarded by the state courts as imposing no obligation on the company to
transport local passengers.'^"

Where Local Passengers Carried. — An annual tax imposed by a state stat-
ute upon sleeping car companies which carry one or more local passengers on
cars operating within the state is not void as a burden on interstate commerce,
where the company is free to decline all local business if it sees fit.'^i

Tax on Capital Stock. — Since a state has the right to tax personal property
within its jurisdiction, even though it is employed in interstate commerce, a state
tax on such proportion of the whole capital stock of a foreign sleeping car com-
pany as the number of miles over which its cars are operated within the state
bears to the whole number of miles over which its cars are operated, is valid and
constitutional, though such cars run into, through, and out of the state.'^^

Tax on Gross Receipts. — The Indiana statute which provides that every
sleeping car company doing business in the state shall report to the auditor the
gross amount of all its receipts for fares earned in business done in the state for
the preceding year, and shall pay into the state treasury two dollars on every one
hundred dollars of such receipts, is invalid.'^^

Tax on Value of Average Number of Cars Placed in Railroad Yard. —
Under a statute of Kentucky authorizing a city to make an annual assessment of
all personal property within the corporate limits subject to taxation for state
purposes, and providing that all personal estate within the state shall be subject
to taxation, unless exempted, a city may impose a tax on sleeping cars of a for-
eign corporation engaged in interstate commerce to the extent of the value of the

state. Pullman Southern Car Co. v. No- U. S. 36, 35 L. Ed. 621, 11 S. Ct. 883,

Ian, 22 Fed. 276. affirming Pullman's Palace Car Co. v.

Act 1877, c. 16, § 6, declaring the run- Commonwealth, No. 2, 107 Pa. 156.

ning of sleeping cars not owned by the Act June 7, 1879, imposing a tax on the

railroad upon which they are used to be gross receipts of foreign corporations,

a privilege, and imposing a tax thereon, held not an unconstitutional interference

is constitutional; and this, although the with the congressional jurisdiction over

owner is a foreign corporation, and the interstate commerce, though the receipts

cars are used for the accommodation of were partly derived from passengers trav-

passengers traveling through the state. eling in cars of such corporations passing

Pullman Southern Car Co. v. Gaines, 3 into, through, and out of the state. Pull-

Tenn. Ch. 587. man's Palace Car Co. v. Commonwealth,

69. Engaged in both interstate and in- No. 1, 107 Pa. 148.

trastate commerce. — Allen v. Pullman's 73. Tax on gross receipts. — State v.

Palace Car Co., 24 S. Ct. 39, 191 U. S. Woodruff, etc., Coach Co., 114 Ind. 155,

171, 48 L. Ed. 134. 15 N. E. 814.

70. Engaged in intrastate commerce Section 87 of the act of the legislature
only.— Judgment, Pullman Palace Car Co. of Indiana of March 29. 1881, entitled "An
V. Adams, 30 So. 757, 78 Miss. 814, 84 act concerning taxation," imposing a cer-
Am. St. Rep. 647, affirmed in 23 S. Ct. tain proportionate tax according to dis-
494, 189 U. S. 420, 47 L. Ed. 877. tance traveled in Indiana on the gross re-

71. Where local passengers carried. — ceipts of foreign sleeping car companies
Allen V. Pullman's Palace Car Co., 24 S. conveying passengers to, from, and
Ct. 39, 191 U. S. 171, 48 L. Ed. 134. through Indiana, is unconstitutional, as

72. Tax on capital stock. — Pullman's being in conflict with article 1, § 8, of
Palace Car Co. v. Pennsylvania, 141 U. the constitution of the United States. In-
S. 18, 35 L. Ed. 613, 11 S. Ct. 876; Pull- diana v. Pullman Palace Car Co., 11 Biss.
man's Palace Car Co. v. Hayward, 141 561, 16 Fed. 193.



3581 TAXATION. §§ 3962-3964

average number of cars daily placed in railroad yards in the city for the purpose
of preparing them for train service.''''^

Charter Fee. — A foreign sleeping car company can not be restrained from
doing local business in the state because of its refusal to pay the "charter fee" of
a given per cent of its entire capital stock, imposed by a state statute for the
benefit of its permanent school fund, as a condition of doing such business, since
such requirement amounts to a burden or tax on the company's interstate busi-
ness and on its property located and used outside the stateJ^

§ 3963. Tax on Refrigerator Cars. — A state may constitutionally tax re-
frigerator cars used on railroads of the state, and required in their business,
though owned by a corporation of another state, which furnishes them for the
transporation of perishable products, as required by a shipper or railroad com-
pany for a particular shipment or trip — being paid by the railroad company on a
mileage basis — and though such cars are used within the state entirely in carrying
on interstate commerce ; and such tax may properly be fixed upon the value of
the average number of cars employed within the state. '''*^ The state may tax the
average number of refrigerator cars used by railroads within the state, but owned
by a foreign corporation which has no office or place of business within the state,
and employed as vehicles of transportation in the interchange of interstate com-
merce.""

§§ 3964-3972. Tax on Ships— § 3964. In General.— The levying
of a tax upon vessels or other watercraft or the exaction of a license fee by the
state within which the property subject to the exaction has its situs, is not a regu-
lation of commerce within the meaning of the constitution of the United States."^^
A state law which includes steamboats in the property made taxable is not nec-
essarily in violation of the provision of the United States relative to the regula-
tion of commerce."^ Where a city is authorized by law to assess, levy, and col-
lect an annual tax for the use of the city on personal property, not to exceed a
certain per cent of the assessed valuation thereof, an annual tax on steamboats
having that city as their home port, and based on their valuation, is not in vio-
lation of the constitution of the United States, declaring that congress shall have
power to regulate commerce with foreign nations and among the several states.^''

To Defray Expense of Quarantine. — The expense of quarantine regula-
tions can not be raised by a tax on foreign-owned ships engaged in interstate or
international commerce. ^^

To Defray Hospital Expenses. — State statutes requiring from the masters
of vessels engaged in the foreign and coasting trade the payment of a sum of
money for hospital purposes, for each of the officers and crew of such vessel, are

74. Tax on value of average number of 25-4; Wiggins Ferry Co. v. East St. Louis,
cars placed in railroad yard.— Covington 107 U. S. 365, 27 L. Ed. 419, 2 S. Ct. 257;
V. Pullman Co., 121 Ky. 218, 89 S. W. 116, Moran v. New Orleans, 112 U. S. 69, 28
28 Ky. L. Rep. 199. L. Ed. 653, 5 S. Ct. 38; State Tonnage

75. Charter fee.— Judgment, Coleman v. Tax Cases (U. S.), 12 Wall. 204, 20 L.
Pullman Co., 75 Kan. 664. 90 Pac. 319, re- Ed. 370; Nathan v. Louisiana (U. S.), 8
versed in 210 U. S. 56, 30 S. Ct. 232. How.^ 73, 12 L. Ed. 993; Glouces-

76. Tax on refrigerator cars. — Hall v. tcr Ferry Co. v. Pennsylvania, 114 U. S.
American Refrigerator Trans. Co., 51 Pac. 196, 29 L. Ed. 158, 5 S. Ct. 826; Gibbons
421, 24 Colo. 291. 65 Am. St. Rep. 223; v. Ogden (U. S.), 9 Wheat. 1, 6 L. Ed.
S. C, 19 S. Ct. 599, 174 U. S. 70, 43 L. 23; Passenger Cases (U. S.), 7 How. 283,
Ed. 899. 12 L. Ed. 702; Louisville, etc., Ferry Co.

77. Judgment, 55 Pac. 639, 18 Utah 378, v. Kentucky, 188 U. S. 385, 47 L. Ed. 513,
48 L. R. A. 790, affirmed in Union Refrig- 23 S. Ct. 463.

erator Trans. Co. v. Lynch, 20 S. Ct. 631, 79. Perry v. Torrcnce, 8 O. 521, 32 Am.

177 U. S. 149. 44 L. Ed. 708. Dec. 725.

78. Tax on ships. — Transportation Co. 80. Wheeling, etc., Transp. Co. v.
V. Wheeling. 99 U. S. 273, 25 L. Ed. 412; Wbceling. W. \'a. 170, 27 Am. Rep. 552.
Morgan v. Parliam (U. S.), 16 Wall. 471, 81. To defray expense of quarantine.
21 L. Ed. 303; Hays v. Pacific Mail Steam- — Peete v. Morgan (U. S.), 19 Wall. 581,
ship Co. (U. S.), 17 How. 596, 15 L. Ed. 22 L. Ed. 201.



§§ 3964-3967 carriers. 3582

unconstitutional and void, but enactments requiring payment from shipmasters
on account of passengers are constitutional and valid. ^^

Company Incorporated in State. — The power of congress to regulate com-
merce either with foreign countries or between the states is not interfered with
by the assessment of a steamship company incorporated in New York for the
transportation of passengers and freight between New York and a foreign coun-
try. ■^•^

Wharf Leased in State. — A foreign corporation, whose vessels, while en
route between the ports of two different states, stop at a port of a third state, is
not liable for a license tax at that port because it there leases a wharf or landing ;
has plant and machinery for the taking in and discharge of freight and passen-
gers ; engages stevedores and longshoremen, who are in its sole employment ; has
there an agent and subordinate clerks, an office, with furniture, books, and ap-
pliances; and keeps a bank account and occasionally purchases supplies there,
since all such operations are an essential and integral part of its interstate com-
merce business. ^"^

§ 3965. Tax on Gross Receipts. — The imposition of a tax, under the acts
of Pennsylvania, of March 20, 1877, and June 7, 1879, upon a steamship com-
pany incorporated under the laws of Pennsylvania, upon the gross receipts of
such company, derived from the transportation of persons and property by sea
between dift'erent states, and to and from foreign countries, is an invalid regula-
tion of interstate and foreign commerce.^^ The city of Mobile, under its charter
authority to tax real and personal property within the city, may lawfully assess
a steamboat plying on the Alabama River, though it is registered and enrolled
as a coasting vessel under the laws of the United States, and the owner of the
boat is a citizen of another state, if resident in jMobile during the business sea-
son. That the boat may be assessed and taxes paid in the state of which the
owner is a citizen is immaterial. ^^

§ 3966. Tax on Interest of Citizen in Vessel. — The state has a right to
tax a citizen and resident in the state for his interest in vessels which navigate
the seas, and are regularly registered and licensed as American vessels under the
laws of congress.^''' A municipal tax on a vessel engaged in foreign commerce,
and owned by a citizen of the municipality levying the tax, is not in conflict with
the United States constitution, which gives to congress the right to regulate com-
merce with foreign states.^*

§ 3967. Tax on Persons Residing on Ships. — A statute requiring pay-
ment of a license tax by a person residing on a boat, though it applies to the Ohio
and Mississippi Rivers, is not an interference with interstate commerce. ^^

82. To defray hospital expenses. — Peo- A state tax on the gross receipts of a
pie v. Brooks (N. Y.), 4 Denio 469. state corporation engaged in transporting

83. Company incorporated in state. — freight and passengers between this and
People V. Commissioners of Taxes and foreign countries held not within the con-
Assessments (N. Y.), 48 Barb. 157. stitutional inhibition as to the regulation

84. Where wharf leased. — Clyde Steam- of foreign commerce. Philadelphia, etc.,
ship Co. V. Charleston. 76 Fed. 46. Steamship Co. v. Commonwealth, 104 Pa.

85. Tax on gross receipts. — Philadel- 109.

phia, etc., Steamship Co. v. Pennsylvania, 37, Tax on interest of citizen in vessel.

122 U. S. 336, 30 L. Ed. 1200, 7 S. Ct. 1118. —Howard v. State (Md.), 3 Gill 14.

86. Battle v. Mobile, 9 Ala. 234, 44 Am. j^ j^ ^^^^ ^ regulation of commerce for
■'-'^; ^'^^r r ,r , •, J •. u ^ the state to tax the interests of a citizen

The city of Mobile, under its charter ^^ Maryland in vessels engaged in for-

authority to tax real and personal prop- ^. commerce, registered at the proper

erty within the city, may lawfully assess ^^^^^^^j ^^^^ -^ ^j^^ ^^^^^^ Gunther v. Bal-

a steamboat plying on the Alabama River ^.^^ ^^ y^^_ ^^^

if owned by citizens of the state resident „„ ^ , r> t.- rr tv/tj ik'j

in Mobile, though it is registered and en- 88. Gunther v. Baltimore 55 Md. 457^

rolled as a coasting vessel under the laws ^•^^'' °^ P%"'°"^ residing on sh^s.

of the United States. Battle v. Mobile, -^'^^^''t^^", ^:„5^°™T"'^/ t ' ^9 ^"

9 Ala. 234, 44 Am. Dec. 438. 285, 40 S. W. 920, 19 Ky. L. Rep. 443.



3583 TAXATION. §§ 3968-3969

§ 3968. Tax on Agents, Pilots, etc. — Tax on Agents. — The Act of

Tennessee of 1879, providing means for the local government of the "taxing
district,'' which provides that steamboat agents other than the proper officers of
railroads terminating at the taxing districts, shall pay a privilege tax is not a reg-
ulation of commerce between the states, and is not therefore in violation of the
constitution of the United States. '^'^

Tax on Pilots. — The act of Indiana "regulating the licensing of pilots at the
falls of the Ohio river" provides that the governor shall appoint the pilots, who
shall execute bonds, etc., conditioned, etc., and that any owner or navigator of
a boat ascending or descending the river may navigate said falls at his own risk.



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 91 of 214)