1 Reported in 25 N.W.2d 838. This matter, which has come to the writer by reassignment, involves demands for refund of franchise taxes paid by relator, The Pullman Company, for the years 1934, 1936, and 1937. Such taxes *Page 97 were paid under and pursuant to L. 1933, c. 405, § 2. The amounts thus paid and refunds of which are here sought are $154.30 for 1934, $1,279.90 for 1936, and $1,829.73 plus interest of $380.64 for 1937.
Proceedings to secure refunds in all the cases were had before the commissioner of taxation, and, upon denial of the relief sought, appeal was taken to the board of tax appeals, where relator was likewise unsuccessful. Thereupon, the matters were brought here for review by certiorari. The three cases have been consolidated on appeal, but only one opinion will be written.
It is the contention of relator that it is entitled to a refund of the franchise taxes paid for the years 1934 and 1936 because in such years it was subject to and had paid the gross receipts tax under L. 1913, c. 480, § 2 (Mason St. 1927, § 2278), which gross receipts tax was by the provisions of § 2278 expressly stated to be "in lieu of all taxes and assessments upon all taxable property, of said company within this state, * * *." Refund of the franchise tax paid for 1937 is claimed on the ground that during that year relator was subject to and paid a gross receipts tax under § 2278 as amended by Ex. Sess. L. 1937, c. 3, § 2, being Mason St. 1940 Supp. § 2278, which gross receipts tax was by the amendment of 1937 expressly stated to be "in lieu of all ad valorem taxes upon all taxable property of said company within this state, * * *."
It is urged by relator that the franchise tax which it was thus compelled to pay for the years 1934, 1936, and 1937 is in fact an ad valorem property tax and therefore could not properly be imposed upon and collected from relator inasmuch as during those years relator was subject to and paid the gross receipts tax above referred to, which gross receipts tax was also a property tax, which by its terms was an exclusive tax upon the entire property of relator within the state, including relator's franchise. If relator is correct in its contention that the franchise tax is an ad valorem property tax and that the gross receipts tax, under the gross receipts tax act prior to its amendment in 1937, was in fact a tax to be imposed "in lieu of all taxes and assessments upon all taxable *Page 98 property, of said company within this state," and that from and after the amendment of 1937 such gross receipts tax was in fact, as stated in the amendment, "in lieu of all ad valorem taxes upon all taxable property of said company within this state," then, clearly, it should prevail in these proceedings. If, on the other hand, as is contended by the state, the franchise tax is not an ad valorem property tax, but an excise tax, then such franchise tax may properly be imposed upon and collected from relator.
It is therefore necessary to decision here that we determine the character of the taxes involved — whether the franchise tax is an ad valorem property tax or an excise tax, and whether the gross receipts tax, both before and after the 1937 amendment thereto, is a property tax to be imposed on the entire property of relator in the state exclusive of all other taxes.
1. We will first consider the character of the franchise tax imposed by L. 1933, c. 405, § 2, which tax relator here contends is an ad valorem property tax and therefore not properly imposed upon and collectible from relator. Section 2 provided for the imposition upon every domestic and foreign corporation of an annual tax for the privilege of existing as a corporation or of transacting any local business within the state during any part of its taxable year, such tax to be measured by the corporation's taxable net income for the year, to be computed in the manner and at the rates specified in the act. Subsequent modifications of the act have not changed the material provisions thereof.
This court has heretofore had the foregoing section before it for consideration, and in the course of such consideration it designated the tax imposed by such enactment as a property tax rather than an excise tax. We call attention to Bemis Bro. Bag Co. v. Wallace, 197 Minn. 216, 266 N.W. 690, and State v. Duluth, Missabe Northern Ry. Co. 207 Minn. 618, 623,292 N.W. 401, 404. In the latter case, the court said in the course of its opinion:
"The tax imposed upon a corporation by c. 405, § 2, is described by the legislature in that section as a tax 'for the privilege of existing as a corporation or of transacting any local business within *Page 99 this state during any part of its taxable year, measured by its taxable net income for such year.'
"Is this a property tax upon the franchise? If so, then it is a tax upon a subject covered by the gross earnings tax and is invalid without a vote of the people to approve it. The state contends that it is an excise tax, and presents an elaborate and learned argument to that effect. We think, however, that the question is completely and conclusively answered in favor of defendants by the decision of this court in the case of Bemis Bro. Rag Co. v. Wallace, 197 Minn. 216, 266 N.W. 690. The question there presented was whether the corporate excess tax provided for in 1 Mason Minn. St. 1927, § 2021, was superseded and repealed by implication by various tax statutes subsequently enacted. A part of the problem there confronting the court was adjudication of the character of the tax imposed by c. 405, § 2. We there held that both the good will and franchises, as property, are included within the expressed subject of c. 405, § 2, which for convenience is referred to as the income tax law. This holding was addressed to the merits of the question then before this court. Other cases might be cited, but we deem the Bemis case conclusive on this point.
"Like the gross earnings tax law, c. 405, § 2, is a tax upon property measured by the net taxable income of the corporation.By its terms the section makes the tax a property tax and notan excise tax." (Italics supplied.)
That a franchise is property and taxable as such was the view of this court long before the Bemis and the Duluth, Missabe cases were decided. In State v. Duluth G. W. Co. 76 Minn. 96,103, 78 N.W. 1032, 1033, 57 L.R.A. 63, Mr. Justice Mitchell stated in the course of the court's opinion:
"* * * It is well settled that these franchises, although neither visible nor tangible, are property which may be taxed the same as any other property."
Nor is there anything novel or unique in holding, as this court has heretofore done, that the franchise tax here involved is a property tax. *Page 100
"* * * It is held with practical unanimity that the franchise is property and may be taxed as such. Whenever a corporation is legally formed, the right to exist as a corporation and to perform the functions named in the charter, even if they are such as may be performed by individuals without any grant from the state, is a franchise which may be taxed as property, * * *." 26 R.C.L., Taxation, § 138.
At an early day the United States Supreme Court said in the case of Wilmington Railroad v. Reid, 80 U.S. (13 Wall.) 264, 268, 20 L. ed. 568, 570:
"It is insisted, however, that the tax on the franchise is something entirely distinct from the property of the corporation, and that the legislature, therefore, was not inhibited from taxing it. This position is equally unsound with the others taken in this case. Nothing is better settled than that the franchise of a private corporation — which in its application to a railroad is the privilege of running it and taking fare and freight — is property, and of the most valuable kind, * * *."
There appearing to be no impelling considerations of justice requiring a departure therefrom, we adhere to the past decisions of this court and hold that the franchise tax here involved is a property tax. The fact that such view, long ago adopted by this court, may now be a minority view is not of itself sufficient reason for reversing decisions which adopted a rule that has here long been accepted and followed.
Inasmuch as the gross receipts tax act by its 1937 amendment provided that the gross receipts tax was "in lieu of all advalorem taxes upon all taxable property of said company within this state," we will next consider whether the franchise tax here imposed is in fact an ad valorem (according to value) tax.
The fact that the tax imposed is, according to the terms of the franchise tax act (L. 1933, c. 405, § 2), to be "measured by its [such corporation's] taxable net income for such year" for which the tax is imposed is persuasively indicative of a legislative intent to base *Page 101 such tax upon the value of the franchise, thereby making it an ad valorem tax, for it is obvious that the value of a franchise is largely determined by the profitableness of the use of such franchise. Here, the legislature deliberately chose one of the most dependable methods of measuring the value of the franchise and provided that the tax to be imposed should be arrived at by such method of measurement.
In the light of the foregoing considerations and for reasons further appearing in the decisions hereinafter referred to in paragraph 2 of this opinion, we hold that the franchise tax is an ad valorem property tax.
2. We now come to the second question here involved, the answer to which is essential to the determination of the matter before us. That question is whether the gross receipts tax imposed by L. 1913, c. 480, § 2 (Mason St. 1927, § 2278), prior to and subsequent to its amendment by Ex. Sess. L. 1937, c. 3, § 2, was a property tax upon all property of relator in this state and a tax to be imposed thereon to the exclusion of all other taxes. In the light of the repeated and unequivocal pronouncements of this court on this question over a considerable period of time, we do not hesitate to answer the foregoing question in the affirmative.
As hereinbefore indicated, the gross receipts tax statute as it existed prior to 1937 and since its amendment in that year was and still is § 2278. This section, as it existed prior to its amendment in 1937, imposed a tax equal to five percent of the gross earnings of sleeping car companies such as relator, the statute expressly stating that the tax thus imposed was "in lieu of all taxes and assessments upon all taxable property" of said company within the state. After the amendment of 1937, the statute expressly stated that the tax was "in lieu of all advalorem taxes upon all taxable property of said company within this state." Attention is again called to this fact, inasmuch as that section, prior to its amendment in 1937, was the law in effect during the time of the imposition of the franchise taxes for the years 1934 and 1936, for which refund is here being sought, and the law of 1937, after its amendment, was the law in effect at the time of the imposition of the 1937 tax, for which refund *Page 102 is also here sought. It must next be determined whether the gross receipts tax, as it existed both before and after the amendment of 1937, was and is a tax to be imposed in lieu of all other taxes of the company involved for the years 1934 and 1936 so as to exclude the franchise tax sought to be imposed for those years, and whether it excluded such tax in 1937, when the provisions of the gross receipts tax act provided that they were "in lieu of all ad valorem taxes."
This court has heretofore clearly indicated that the phrase "in lieu of all taxes and assessments upon all taxable property, of said company within this state," as contained in L. 1913, c. 480, § 2 (Mason St. 1927, § 2278), prior to its amendment in 1937, meant that it is a property tax to be imposed to the exclusion of all other taxes. This court, in State v. Duluth, Missabe Northern Ry. Co. 207 Minn. 618,292 N.W. 401, supra, considered the nature of the franchise tax which we now have before us. In that case, this court, after stating that the tax paid under the railroad gross receipts tax act constituted a property tax on the franchise and all other tangible and intangible property used for railroad purposes, reaffirmed its decision in Bemis Bro. Bag Co. v. Wallace,197 Minn. 216, 266 N.W. 690, supra, which had held that the tax imposed by L. 1933, c. 405, § 2, is a property tax imposed only on the single item of corporate franchise and good will, which was previously taxed by Mason St. 1927, § 2021, and, after holding that a railroad franchise as property for the purposes of taxation is divisible, the court held that that part of the franchise used for railroad purposes was not subject to the property tax imposed by L. 1933, c. 405, § 2, under the name of a franchise tax, because as to the part of the franchise used for railroad purposes the gross receipts tax was exclusive, inasmuch as the part of the franchise used for railroad purposes had been withdrawn and exempted from ordinary ad valorem taxation and was included in that particular class of property which was classified and subjected to ad valorem taxation under the railroad gross receipts tax act, which valued as a unit every item of property used for railroad purposes. *Page 103 This court said in the course of its opinion in that case (207 Minn. 623, 292 N.W. 404):
"Like the gross earnings tax law, c. 405, § 2, is a tax upon property measured by the net taxable income of the corporation. By its terms the section makes the tax a property tax and not an excise tax. We therefore hold that the tax imposed by c. 405, § 2, is a tax upon property already taxed under the gross earnings tax and hence as applied to railroad corporations is invalid as to franchises insofar as they are exercised for railroad purposes.
"Earnings from any source other than ownership or operation for a railroad purpose are not included in the gross earnings tax measure. Any property owned by the railroad, but used for a nonrailroad purpose, is subject to ordinary ad valorem property taxation. * * * If a railroad exercise its corporate franchise for railroad purposes and also for nonrailroad purposes, that part of its exercise for nonrailroad purposes cannot escape taxation. It follows that railroads may not be subject to the franchise tax imposed by c. 405 measured by income from railroad ownership or operation because for such exercise of the franchise the gross earnings tax is exclusive, but that they are subject thereto insofar as the franchise is exercised, whether ultra vires or not, for other than railroad purposes. That part of the franchise so exercised is as separable, as much subject to ordinary taxes, as is any nonrailroad property. The purpose of the legislature in not listing railroads among the exempt must have been to assure taxation of any income not attributable to railroad ownership or operation."
It seems clear that, inasmuch as the court there held that the nonrailroad franchise was subject to ordinary ad valorem property taxation and as c. 405 was the only general law imposing taxes on that class of property, it must follow that the nonrailroad franchise is subject to taxation under that act. Accordingly, it becomes apparent that this court then, as we have here done, considered the franchise tax as an ad valorem property tax. Relator, therefore, is exempt from such tax by the clear statement of L. 1913, c. 480, § 2 *Page 104 (Mason St. 1927, § 2278), both before and after its amendment in 1937, for prior to 1937 it exempted all taxes, ad valorem or otherwise, and the amendment of 1937 exempted ad valorem taxes, in which classification the franchise tax falls. In State v. C. R.I. P. Ry. Co. 181 Minn. 615, 620, 232 N.W. 105, 107, in referring to the effect of the railroad gross receipts tax act and the sleeping car gross receipts tax act as it existed prior to its amendment in 1937, this court said:
"* * * When the railroad company paid the gross earnings tax upon all its gross earnings, * * * and the Pullman Company paid the gross earnings tax upon all its earnings, * * * the state then had received full payment of taxes for the period covered, upon all the property, both of the railroad company and the Pullman Company, subject to taxation in this state."
The court in that case had under consideration the question of attempted imposition under another act of a second or additional tax measured by a segregated portion of the earnings from the property already taxed under the sleeping car gross receipts tax act, and said relative thereto (181 Minn. 623,232 N.W. 108):
"* * * now to exact a second payment would result in double taxation, which is not permissible under our laws and the decisions of this court. We have not overlooked the decisions cited from a few other jurisdictions where double taxation in matters of this kind has been permitted, but deem the rule well established in this state to the contrary."
Bearing directly upon the question before us is the language of the Supreme Court of the United States in the case of Wright v. Georgia R. B. Co. 216 U.S. 420, 432, 30 S. Ct. 242, 246,247, 54 L. ed. 544, 556, where the court said in the course of its opinion:
"* * * A tax upon earnings is a tax which at least covers and includes, unless double taxation is intended, all property necessarily held and used to make that income, including the enjoyment of its franchises. * * *
* * * * * *Page 105
"If we are right in construing the tax as one upon net income as a substitute for a property tax, the franchise may no more be taxed than any other property appropriate to the operation of the road. When the State gave up the right to levy and collect a property tax and to take in substitution a tax upon the annual net profit, it gave up the right to tax the franchise of the company as certainly as it gave up the right to tax its railroad."
It should be noted that the only distinction between the tax thus considered by the United States Supreme Court in the above case and the gross earnings tax in Minnesota sought to be applied to relator is that in Minnesota the property tax on the entire property is measured by gross earnings, whereas in Georgia the property tax on the entire property was measured by net income.
We invite attention to the case of Railway Express Agency, Inc. v. Holm, 180 Minn. 268, 230 N.W. 815, which involved the express companies gross receipts tax act. It is, however, of persuasive force here, by reason of the fact that the express companies gross receipts tax act (Mason St. 1927, § 2268) provided that the tax there imposed was "in full and in lieu of all taxes and assessments upon its property." In that case, the taxing authorities of Minnesota had attempted to levy a separate tax on the motor vehicles owned and operated by the Railway Express Agency. In holding such assessment invalid on the ground that the property tax paid by the express agency under the gross receipts tax act was in lieu of all property taxes on all its property, including its motor vehicles, this court said (180 Minn. 271, 230 N.W. 816):
"Our conception of the gross earnings tax is that it is aimed at the business to which it is applicable considered as a whole and embracing all property used therein. We think of this commuted tax as applicable to a going concern and as covering the whole thereof. That thought seems to run through our decisions. County of Ramsey v. C. M. St. P. Ry. Co. 33 Minn. 537,24 N.W. 313; County of Todd v. St. P. M. M. Ry. Co.38 Minn. 163, 36 N.W. 109; City of St. Paul v. St. P. M. M. Ry. Co. 39 Minn. 112, *Page 106 38 N.W. 925; State v. N.W. Tel. Exch. Co. 84 Minn. 459,87 N.W. 1131; State v. Twin City Tel. Co. 104 Minn. 270, 116 N.W. 835; State v. N.W. Tel. Exch. Co. 107 Minn. 390, 120 N.W. 534; State v. Cudahy Packing Co. 129 Minn. 30, 151 N.W. 410; State v. Wells Fargo Co. 146 Minn. 444, 179 N.W. 221. See also Hopkins v. Southern California Tel. Co. 275 U.S. 393,48 S. Ct. 180, 72 L. ed. 329.
"The gross earnings tax is inconsistent with any other form of taxation. Wright v. Georgia R. B. Co. 216 U.S. 420,30 S. Ct. 242, 54 L. ed. 544; Stearns v. Minnesota, 179 U.S. 223,21 S. Ct. 73, 45 L. ed. 162; Hopkins v. Southern California Tel. Co. 275 U.S. 393, 48 S. Ct. 180, 72 L. ed. 329. Indeed, it seems to us that the unity of purpose is the foundation for the imposition of such commuted tax. Some of plaintiff's authorities rest upon a question of statutory or contract construction. The state claims this distinguishes such authorities and that they should not be controlling on the present question. But upon principle and reason we believe such tax always contemplated all property used in the particular business."
It seems to us that it would be unwarranted and inexplicable inconsistency to hold that the ruling and reasoning applied in the Railway Express Agency case which we have quoted is not applicable to the case at bar.
It is true that subsequent to this court's decision in the Railway Express Agency case our constitution was amended (art. 16, § 3) so as to permit taxation of motor vehicles used on public highways and streets of the state on a more drastic and onerous basis than applied to other personal property. Under such constitutional authorization, a statute was passed to make the power thus conferred effective. It is for that reason that in the subsequent case of State v. Railway Express Agency, Inc.210 Minn. 556, 299 N.W. 657, the court held that the gross earnings tax payment by the express company was in full and in lieu of all taxes and assessments upon its property except the motor vehicle tax. In such case, however, the court also said (210 Minn. 565, 299 N.W. 661):
"* * * It is settled beyond argument that the gross earnings taxes on railroads and express companies are not taxes upon the *Page 107 earnings of the companies, or upon the companies, or their franchises, but are taxes upon the property of the companies within the state which are measured by their gross earnings. State v. U.S. Exp. Co. 114 Minn. 346, 131 N.W. 489,37 L.R.A.(N.S.) 1127, affirmed, 223 U.S. 335, 32 S. Ct. 211,56 L. ed. 459. (See criticism of the rule in Blakey, Taxation in Minnesota, p. 326.)
"A tax on a railroad's property measured by a percentage of its gross earnings is not the same as a tax on the earnings themselves. The former is a property tax. A tax on a railroad's earnings as such is an income tax, which is unconstitutional since the property tax measured by a percentage of the gross earnings is, under the constitution, in lieu of all taxes against a railroad. State v. D. M. N. Ry. Co. 207 Minn. 618,292 N.W. 401. For like reasons, the receipts or earnings of an express company are not taxable as such, since under § 2268 the payment of the gross earnings tax by an express company is in full and in lieu of all taxes and assessments upon its property, except the motor vehicle tax under 3 Mason Minn. St. 1940 Supp. §§ 2672-2674, enacted pursuant to authorization under Minn. Const. art. 16, § 3, as amended in 1932, which tax we recently sustained in State ex rel. Ry. Exp. Agency, Inc. v. Holm, 209 Minn. 9, 295 N.W. 297. State v. U.S. Exp. Co. supra. The freight receipts in question were not taxed as such. Neither the railroad nor defendant paid a tax on such receipts. Hence the payment of the railroad gross earnings tax did not cover all taxes on the receipts from the entire freight movement as to both the railroads and defendant."
It should be especially noted here that in disposing of the foregoing case the court held that the payment of the 1938 property taxes under the express companies gross receipts tax act subsequent to the "in lieu" amendment to the act in 1937 was "in full and in lieu of all taxes and assessments upon its property, except the motor vehicle tax * * *." The court surely was conscious of the amendment in 1937 to the express companies gross receipts tax act, providing that the tax paid thereunder was "in lieu of all ad valorem taxes upon its property," and that express companies were not specifically *Page 108 excepted from the provisions of the franchise tax act passed as it was in 1933. By holding that the tax paid for 1938 was in lieu of all taxes and assessments upon its property, it is obvious that, as in previous holdings prior to the 1937 amendment, the tax paid under the express companies gross receipts tax act was exclusive of any other ordinary taxes upon any item of the company's property, ad valorem or otherwise. Had the court not considered the tax imposed under the franchise tax act to be an ad valorem property tax and as such included in the "in lieu" provisions of the gross receipts tax payment there under consideration, there is great likelihood that this court in its opinion would have so definitely stated.
3. It appearing that the franchise tax act is an ad valorem property tax, that the franchise of relator is taxed as property under the gross receipts tax act, and that such gross receipts taxes are in lieu of all other property taxes, we must and do hold that the tax imposed upon relator through the franchise tax act is invalid as double taxation, and that the imposition of such franchise tax is also objectionable as being in contravention of Minn. Const. art. 9, 1, that "Taxes shall be uniform upon the same class of subjects, * * *."
The orders of the board of tax appeals here involved are reversed and remanded with directions to order the refunds here sought.
So ordered.