Morrell Ref'g'r Car Co. v. Commonwealth

Judge Nunn

(dissenting): I can not agree to the •opinion herein for three reasons: First. Section 4081 of the Kentucky Statutes of 1903 is not applicable to this case. Appellant has no lines of railroads, telegraph, -telephone, or other lines in this State or any other State. Its only business is to manufacture cars and rent them to John Morrell & Co., Limited, which uses them upon lines of railroads. Appellant is a Kentucky corporation, and, so far as taxation is concerned, is a similar institution to a bank organized in this *463State which transacts business with the people of this State and with those of other States, and which pays its whole franchise tax to the State of Kentucky. The express, sleeping, dining, palace, or chair ear companies, referred to in the opinion as being like appellant herein, are very different.in my opinion; for these companies rent the privilege from the railroad companies to have their cars hauled over their lines, and they operate them, and in the meaning of the statute they do use lines of railroads passing through different States, but not so with appellant. It rents no line, operates no ears,- but only constructs and rents .them, and for this reason the Legislature did' not include in section 4081 corporations like appellant. But, suppose I am mistaken in this, the General Assembly in enacting section 4081 left out corporations like appellant, and left them to be taxed under section .4077, which requires them to pay the whole of their franchise tax to the State of Kentucky, and in my judgment this court has no power to amend section 4081 by construction or to interpolate it by inserting the words “or every like company or corporation,” transposed from section 4077, to aid this appellant in avoiding taxation. If the words- were in section 4081,- it would not include this appellant, because it is not a like company or corporation to those mentioned therein. The sole power to enact laws is with the General Assembly, and this court’s duty is to construe them, and not to amend them by inserting words and phrases. If the court’s construction of section 4081, as stated in the opinion, is correct — that is, that this appellant corporation is a like corporation to the chair car company and other corporations mentioned in the section — then the section as enacted by the General Assembly might unjustly discriminate against *464appellant and be in violation of section; 14 of the U. S. Constitution-; but, even if this is so, the court would have no power to amend the section, and in that case it would be this court’s duty to declare the whole section void and leave all corporations to be taxed on their whole franchise as provided in section 4077. But in my opinion the section is valid. Appellant is not a like corporation to those mentioned in section 4081. For these reasons, I dissent from the opinion of the court.