Both parties having made requests for special findings of fact, the court upon a consideration of the evidence, does find:
(1) Plaintiff is a Michigan corporation engaged in the manufacture and sale of Portland cement.
(2) The Huron Transportation Company is ,also a Michigan corporation, with a capital stock of $10,000, organized to own and operate boats. Its original incorporators were the three principal stockholders of plaintiff’s corporation, and plaintiff now owns all of the paid up stock of the Huron Portland Cement Company.
(3) Before the organization of the transportation company, the plaintiff had acquired the steamer Samuel Mitchell, paying therefor $55,000, and spending an additional $55,-000 in refitting it. This sum was later de•frayed from the proceeds of transportation company notes, guaranteed by plaintiff, and afterwards paid by it. No charge for interest on the notes has ever been made by plaintiff against the transportation company, and the transportation company has never paid dividends on its stock.
(4) The steamer Samuel Mitchell was refitted with special machinery and equipment to carry cement in bulk, cannot carry in quantity any other Commodity, and has never carried in any substantial way any other commodity.
(5) Plaintiff’s manufacturing plant is in Alpena, Mich., with docks and distributing plants at Duluth, Milwaukee, Detroit, Toledo, and Cleveland, equipped with special machinery for unloading bulk cement. There are no other cement plants or distributing plants on the Great Lakes equipped with such machinery for such purpose.
(6) Transportation company has never published or filed any tariff of rates, and has never complied, or been required to comply, with the laws of Michigan governing boats carrying freight for hire.
(7) After the organization of the transportation company, it entered into an agreement with the plaintiff which provided that the steamer Samuel Mitchell should be used exclusively to carry bulk cement for the plaintiff; that the entire expense of its operation should be borne by the plaintiff, setting up a charge per ton of cement handled, with the *532provision that at the end o£ the year the entire cost of operating the steamer should be paid by plaintiff irrespective of the fixed charge or rate.
(8) Plaintiff’s officers and employees have controlled the steamer’s operation, purchased its supplies, designated points of delivery, and directed its repairs, and no charge has been made to the transportation company for such service.
(9) The steamer Samuel Mitchell had no regular trips, but carried bulk cement from plaintiff’s Alpena plant to its subsidiary plants.
(10) The transportation company made an income tax return for 1917, reporting as gross sales money advanced and paid by the plaintiff to cover the steamer’s costs, operations, and repairs. For the same year plaintiff and transportation company made a consolidated return of excess profits tax. Such consolidated return was made also in 1918, and each year thereafter, up to and including 1921, for the purpose of having income tax assessed, in each instance reporting as gross sales the amount of advances and expenses paid by the plaintiff on account of the opera-' tion of the transportation company’s steamer.
(11) Beginning with 1916, the plaintiff has paid all of the expenses of the operation of the transportation company’s steamer, regardless of the arbitrary charge provided in the agreement above referred to.
(12) For the period from November 1, 1917, to July, 1921,.included, a transportation tax was assessed against the plaintiff in the sum of $10,361.45, to which a penalty was added in the sum of $429.90.
(13) The plaintiff duly filed its claim of abatement, and upon its being denied paid the taxes and penalty under protest. It duly filed its claim for refund, which was rejected, whereupon it began this suit.
Opinion.
The tax sought to be recovered by the plaintiff in this proceeding was assessed for the period November, 1917, to April 1, 1919, under the provisions of sections 500 and 501 of the Revenue Act of 1917 (Comp. St. §§ 6309%a, 6309%b), and for the period from April, 1919, to July, 1921, under sections 500 and 501 of the Revenue Act of 1918 (Comp. St. §§ 6309%a, 6309%b). The contentions upon which plaintiff relies may be briefly stated as follows:
(1) The 1917 law applies only to public utilities or common carriers, and neither plaintiff, the transportation compány, nor its steamer, was a public utility or common carrier.
(2) The 1918 law applies only on amounts paid for transportation to a carrier for hire. The transportation company’s steamer wa3 not a carrier for hire, but a plant facility for the plaintiff.
(3) The government having elected to treat the two corporations as one in respect to the consolidated income and exeess profits tax returns cannot now be heard to say that they are separate.
(4) Plaintiff’s agreement with the transportation company was an agreement for the demise of the boat, and as such the amounts plaintiff paid to the transportation company under the agreement are not taxable.
1. The 1917 act provides for a tax on the amount paid for transportation when in competition with carriers by rail or water of property by freight consigned from one point in the United States to another, and that the tax so assessed shall be paid by the person or corporation paying for the service or facility rendered. The act is not by its terms made applicable only to common carriers. The plaintiff’s contention is that by implication it should be interpreted as so limited. The use of the descriptive term “carrier” in the applicable sections of the act certainly raises no implication that common carriers were meant.. The law recognizes that there are common carriers, and that there are private or contract carriers, and it was certainly within the power of the Congress to tax transportation by either or both classes of carriers.
It is next urged that the statute is meant to refer to common carriers, because it provides that the tax be measured by the rate or tariff of carriers that publish rates or tariffs; that is, common carriers. It would seem that such implication as might be indicated by such language points to a conclusion directly opposite to the one contended for by the plaintiff. If transportation by common carriers only was meant to be taxed, there would have been no need to fix a measure of the amount to be taxed by a reference to those carriers that publish, or are required to publish tariffs. There is further urged in support of the plaintiff’s view, that eommon carriers were intended by the 1917 act because the 1918 act in section 501, subdivision (c), uses the language: “The taxes imposed by section 500 shall apply to services or facilities specified in such section when rendered for hire, whether or not the agency rendering them is a common carrier.” ■ There certainly can be no merit to this contention. It is just as logical to urge *533that the 1917 act applied only to private earners, and that by the language referred to in the 1918 statute, the Congress intended to extend the tax to common carriers. There is next relied upon the title to the chapter in which the material sections of the 1917 act are contained, as printed in Federal Statutes Annotated. The title is there given as “Facilities Furnished by Public Utilities and Insurance.”
Plaintiff contends that if there is any ambiguity in the meaning of the section, resort can be had to the titles for correct interpretation of the statute, citing Meischke-Smith v. Wardell (C. C. A.) 286 F. 785. There can be no quarrel with the rule thus urged, but plaintiff points out no ambiguity in the meaning of these sections, nor can I find any. The War-dell Case, supra, is not concerned with any ambiguity in the statute. If there is any holding in that ease on the question of ambiguity necessary for decision, and I think there is none, because the case was decided upon other grounds, the holding is adverse to the plaintiff rather than in its favor. However it may sometimes seem to the layman otherwise, Courts do not rewrite statutes. The act is clear in its terms, and nothing convincing is presented that would warrant the court in limiting the application of the tax therein provided for to a specific class of carriers where the statute makes no such classification, and where its meaning is obviously clear. Were any other consideration necessary to negative the faet of ambiguity in the statute, it would be necessary only to recall that in recent years the taxation, regulation, and control of common carriers has been the very anxious concern, both of the Congress and of the Legislatures of the several states. It would be idle to argue at this stage of the development of legislation in reference to common carriers that any legislative body, and particularly the Congress, would by inadvertence enact a statute in its terms applying to all carriers, when its intention was to apply such statute only to carriers of a given class.
2. We come then to the application of the 1918 statute, which clearly, and the fact is not controverted by the defendant, makes the Transportation Act applicable only to carriers for hire, without regard to their classifications as private or as common carriers. It is argued by the plaintiff on various grounds that the transportation company is not such a carrier. Were decision to rest merely upon the faet that the plaintiff paid a rate for transportation determined by the cost of operating the transportation company’s facility, or upon the faet that various employees and officers of the plaintiff’s company devoted their time to the business of the transportation company without a charge being made by the plaintiff for such service, it would seem to me to be clear that the transportation company was a carrier for hire, whatever may have been the yardstick for the measurement of the cost of service supplied, by the transportation company to the plaintiff.
To hold the transportation company a carrier for hire, however, and to sustain the validity of the tax under the 1918 statute, it would be necessary to base decision upon the one faet alone that the transportation company is a distinct corporation, and a separate entity from the plaintiff corporation. In all other respects it must be clear from the findings of fact, that the transportation company is a subsidiary of the plaintiff, owned and controlled by it, that its activities are completely linked with and wholly devoted to the plaintiff’s business. Were the steamer Samuel Mitchell operated by the plaintiff, and had it not been turned over tí> a separate corporation, it would be equally clear under the facts of this case that the transportation of freight by it would not be subject to tax under the 1918 law, in view of the provisions of subdivision (c) of section 501, title 5, of the 1918 act, which distinguishes mere transportation of commodities from transportation for hire.
Does the faet that the plaintiff and the transportation company are under the law distinct corporations, and distinct legal entities, furnish the only necessary test as to the status of the transportation company as a carrier for hire? For answer to this query reference is made to two late decisions of the United States Supreme Court. Southern Pacific Co. v. Lowe, 247 U. S. 330, 38 S. Ct. 540, 62 L. Ed. 1142, and Gulf Oil Corporation v. Lewellyn, Collector, 248 U. S. 71,39 S. Ct. 35, 63 L. Ed. 133. In the first case, the Southern Pacific was the lessee of property of the Central Pacific Railroad Company, and was the sole stockholder of the lessor corporation. It was in possession of a surplus belonging to the Central Pacific Railroad, accumulated prior to January 1, 1913, the effective date of the first income tax law. In 1914 dividends were declared out of the surplus of the lessor railroad, and the government sought to tax such dividends as being income of the Southern Pacific during the taxable year 1914. The court held the tax invalid, stating:
“While the two companies were separate legal entities, yet in fact and for all practical purposes they were merged, the former being *534but a part of tbe latter, acting merely as its agent and subject in all things to its proper direction and control. And, besides, tbe funds represented by tbe dividends were in tbe actual possession and control of tbe Southern Pacific as well before as after tbe declaration of tbe dividends. Tbe fact that the books were kept in accordance with tbe provisions of the lease, so that these funds appeared upon tbe accounts as an indebtedness of tbe lessee to tbe lessor, cannot be controlling, in view of tbe practical identity between lessor and lessee.”
It is not enough to say in answer to this bolding that tbe Southern Pacific Case involved tbe application of the Income Tax Law, while the instant ease concerns itself with tbe application of a specific tax on transportation. If tbe two companies were in all respects separate entities, and were unrelated companies, tbe fact that tbe dividends of one company were received by another during tbe taxable year would be controlling regardless of tbe time when such dividends were earned by tbe declaring corporation. It must be clear, therefore, from this decision, that tbe fact of there being two separate corporations is not tbe sole test, but that tbe court will look through tbe form of tbe organization to tbe actual operation, and determine whether or not tbe subsidiary corporation was so owned and controlled, and to such an extent a part of tbe operations of tbe principal corporation that its activities were in fact tbe activities of tbe principal corporation.
Did tbe Southern Pacific Case, however, stand alone, argument might be advanced distinguishing tbe facts in that ease from tbe instant ease in several respects. Tbe Southern Pacific was in actual possession and control of tbe property of tbe Central Pacific Railroad, tbe subsidiary corporation, and tbe money declared as dividends was in possession of tbe Southern Pacific. I am inclined to think that tbe relation between tbe plaintiff corporation and tbe transportation company was not so identical a relation as that which existed in the Southern Pacific Case.
Gulf Oil Corporation v. Lewellyn, supra, removes all doubt, however, of tbe nature of the precedent set by the Southern Pacific Case. In tbe Gulf Oil Corporation Case, tbe principal corporation did not itself do tbe business of its subsidiaries, nor have possession of their property, yet tbe court held that tbe principle of tbe Southern Pacific Case must be taken to cover tbe situation therein disclosed. Tbe court said:
“It is true that tbe petitioner and its subsidiaries were distinct beings in contemplation of law, but tbe fact that they were related as parts of one enterprise, all owned- by tbe petitioner, that tbe debts were all enterprise debts due to members, and that tbe dividends represented earnings that bad been made in former years, and that practically bad been converted into capital, unite to convince us that tbe transactions should be regarded as bookkeeping rather than as dividends declared and paid in tbe ordinary course by a corporation.”
It follows from this discussion that my conclusion must.be that, while tbe 1917 statute taxed all transportation, whether by common or private carriers, or by tbe owner of tbe goods transported, and that tbe tax levied under that statute is valid; that tbe 1918 statute was applicable only to transportation for hire, and that tbe transportation company, even though a corporation distinct from tbe plaintiff corporation, was a subsidiary of tbe plaintiff, and that its activities in transportation were so inseparably linked with tbe business of tbe plaintiff company that they constituted one operation, and that tbe transportation done by it was therefore in fact plaintiff’s transportation, and not a transportation for hire. Tbe tax levied and assessed, therefore, against the plaintiff under tbe 1918 statute, must be declared invalid.
3. In view of the above, tbe contention that tbe government having elected to treat the two corporations as one in respect to consolidated income and excess profits tax returns, and cannot now .be beard to say that they are separate, becomes of no importance, except as it may relate to tbe taxes assessed under tbe 1917 statute. I know of no rule upon which this contention can be sustained, except that of equitable estoppel, and it is settled that such estoppel cannot be invoked against tbe Government.
4, Were the plaintiff and tbe transportation company unrelated corporations, it seems to me equally clear that tbe agreement between them in reference to tbe transportation of tbe plaintiff’s commodities, would be neither a true charter party nor an agreement for the demise of tbe boat. This contention, of course, is also of importance only in relation to tbe tax held valid under tbe 1917 law, and in so far as it applies to such tax it seems to me unsound.
Judgment will be entered in favor of tbe plaintiff, and as against tbe defendant, for those taxes levied and' assessed against tbe plaintiff and by it paid for tbe period between April, 1919, and July, 1921. Tbe amount, as I am at present advised, consists of tbe sum of $3,000.28 for tbe period April to Decern-*535ber, 1919, tbe sum of $3,656.68 for tbe period April to December, 1920, and the sum of $1,-941 for tbe period April to July, 1921. Tbe judgment will also include sucb portion of the assessed penalty as was paid by reason of tbe delay and failure of tbe plaintiff to seasonably pay tbe amounts set forth, and to all such sums will be added interest from tbe date they were actually paid to tbe government to the date of final judgment, at tbe rate of 6 per cent, per annum.