It is respectfully submitted that we have here a plain case of double taxation. Therefore, in my judgment, the decision is wrong, not because of violation of any constitutional limitation, but solely because double taxation is not intended by our gross earnings tax laws.
The ad valorem tax on real estate, which the state seeks to collect, is not upon the reversion of the fee owner, nor upon the leasehold interest of the express company. It is upon the land as such. Operating in rem as it does upon the land, it operates against all the title or titles anybody could have thereto, either fee, reversion, or leasehold.
During the determinative period, the express company, as long-term lessee, was in possession and complete control of the property, which was devoted exclusively to the use of the express company in its business. For purposes of taxation, therefore, the conclusion *Page 591 seems inescapable that the premises were "its property" within the purpose of the gross earnings tax law.
It seems to beg the question to say that "if the express company's property were taxed ad valorem on each piece, there could be no contention that it would be obliged to pay the tax on the building here involved." Of course, it would be under no legal obligation to pay such a tax, but it would be under the practical necessity of doing so in order to prevent losing its title and being dispossessed through forfeiture for nonpayment of taxes.
The next and important fault which, to me, seems to exist in the reasoning of the majority lies in this sentence: "The mere fact that it [the express company] leases it and uses it exclusively in its business does not change the taxable status of the property, nor does the fact that its taxes are measured by its gross earnings." Of course the property remains taxable. But having become (under the lease) property of the express company for purposes of use, it necessarily has become a part of "its property" for purposes of taxation, taxable and taxed under the commuted gross earnings system.
That meets and, it is submitted, disposes of the conclusion of the majority argument reading thus: "The corporation's tax, measured by gross earnings, covers no more property than would be covered by an ad valorem tax assessed against its property piece by piece."
Plainly, if the express company owned this land and devoted it to its express business, the tax thereon would be included in the levy on its gross earnings. How is the problem changed in real substance by the fact that instead of fee ownership the express company is a lessee, the character of user being the same and devotion of the property to express business being as complete as it could have been in any case?
The theory of gross earnings taxation of the property of express companies is identical with that of taxation of railroad property devoted to railroad use. Very recently we have said, speaking *Page 592 through none other than Mr. Justice Loring, that "the gross earnings tax by its terms is in lieu of an ad valorem tax on the ownership as well as the operation of property which is devoted to railroad purposes, and it does not change the situation that the tax in its nature falls entirely on the lessee operator." State v. Duluth, M. N. Ry. Co. 207 Minn. 618,628, 292 N.W. 401, 407.
That was but an elaboration of what was said in Railway Exp. Agency, Inc. v. Holm, 180 Minn. 268, 271, 230 N.W. 815, 816. "But upon principle and reason we believe such [gross earnings] tax always contemplated all property used in the particular business." Personally, I think that should remain the law until it is changed by the legislature. It is respectfully submitted that, in effect, this decision amends the statute so as to result in a duplication of tax not intended by the legislature.
The circumstance that the lessor is bound by a covenant with the lessee to pay the tax is wholly irrelevant to the present issue. It would be an interesting task (were we to hold, as I think we should, that the express company pays the tax under the gross earnings levy) to frame a defense for the owner were the express company to sue him on that covenant. Having by the commuted gross earnings method paid the tax on respondent's real estate, what defense would he have to such a suit on his unambiguous covenant?
My submission is that the judgment is right and should be affirmed. *Page 593