This is an action for an injunction against the treasurer of Cascade county to prevent the collection of a tax for the year 1935 on a trainload of automobiles shipped to the plaintiff Kincaid Motor Company from the plaintiff Ford Motor Company at Detroit, Michigan. The cars were shipped from Detroit to Chicago in a knocked-down condition, and at Chicago were assembled, and from there shipped by way of Minneapolis to the Kincaid Motor Company at Great Falls. The date of the order and the date of shipment from Detroit are not given, but the train reached Minneapolis on the 4th of March and passed through Williston, North Dakota, March 7, arriving in Great Falls on March 9, 1935. It is therefore *Page 337 apparent the property was not in Cascade county on Monday March 4 but was in transit on that date. The question at issue is whether the property can be taxed in Cascade county not having arrived in that county until after the day that all property is presumed to be assessed. There are no disputed facts.
The plaintiff Universal Credit Company, a corporation, is alleged to be a Delaware corporation, but there are otherwise no allegations concerning it, and therefore there are no allegations to warrant a judgment in its favor. The allegations as respects the plaintiff Kincaid Motor Company are that it ordered the trainload of automobiles; that delivery of the cars was not to be made until payment of a draft which accompanied the cars, and there is no allegation that this payment was ever made; therefore there are no allegations that would warrant a judgment in favor of the Kincaid Motor Company. The third plaintiff, the Ford Motor Company, is alleged to be a corporation organized under the laws of Delaware. An examination of the files in the Secretary of State's office shows that the Ford Motor Company has never filed its articles of incorporation in the state of Montana or appointed an agent in this state upon whom service of summons may be made. "No foreign corporation shall do any business in this state without having one or more known places of business, and an authorized agent or agents in the same, upon whom process may be served. And no company or corporation formed under the laws of any other country, state or territory, shall have, or be allowed to exercise, or enjoy within this state any greater rights or privileges than those possessed or enjoyed by corporations of the same or similar character created under the laws of the state." (Const., Art. XV, sec. 11.) The constitutional requirement is a definite prohibition, and a plaintiff must show by specific allegation in his complaint that this constitutional requirement has been complied with. I make this statement aware of previous rulings apparently in conflict therewith. The question is here raised, but is not the chief point in controversy, therefore not *Page 338 argued at length. The Ford Motor Company has not appointed an agent or paid its filing fee in this state, and has therefore no standing in the state. I therefore fail to see how this corporation can ask for any protection in an action of this character from the courts of Montana, especially where it expressly alleges that on its property in the state it is paying no taxes and is by this very action seeking to evade such payment. It is probably claimed that the Ford Motor Company is not doing business in the state of Montana but, where, we ask, is this transaction being culminated? Where is this corporation doing business? It must be doing business somewhere, either in Delaware, Michigan, or Montana. The mere fact that the company organization is in Delaware would be no proof that it was doing business in that state. The fact that the knocked-down parts were shipped from Detroit to Chicago would not be any evidence that this business — this sale — was transacted in Michigan. Montana must therefore be the situs of the transaction. If, for illustration, we had laws in this state, as there are in many states, taxing all business transactions, this state would be the proper place for the payment of the transaction tax. We should therefore refuse to recognize the Ford Motor Company as the plaintiff or as a party having any rights before the courts of Montana in this character of an action, and the injunction should therefore be denied.
A further much-mooted question demands our chief consideration. The property was in transit on Monday the 4th day of March, and counsel for the plaintiff claim exemption because the property was not here in Montana until after that day. It is a well-established principle of law that property in transit may not be assessed at its location on the particular day and hour when the tax goes into effect. I quote from a leading California case: "Upon this language it is argued that the actual location of property upon noon of the 1st Monday of March of each year absolutely fixes its situs for purposes of taxation. With this contention, however, we cannot agree. It is always recognized that in the assessment of goods in transit, *Page 339 of migrating herds, and the rolling stock and vessels of transportation companies, the permanent situs, as distinguished from the place of temporary sojourn, is of controlling force." (Rosasco v. County of Tuolumne, 143 Cal. 430, 433,77 P. 148, and cases there cited.) This principle of taxation is approved beyond question by all courts. The permanent situs of property is its proper place for taxation. Property in transit could not be practically taxed at any place along the way. For instance, it might be in two or three different states on the day that the assessment is presumed to be made; it probably would be exceedingly difficult to tell at exactly what place it was at the hour of noon on March 4. Therefore Cascade county was the permanent situs of this transitory property and the only proper place for its taxation. This presumption of situs does no violence to any law, but instead prevents the perpetration of a fraud upon the state.
This is an action in equity. One of the fundamental rules of equity courts is that "he who seeks equity must do equity." The plaintiffs very frankly admit that this property is not being taxed elsewhere. They seek to entirely evade all taxation of this property by holding it out of the state until after the first Monday in March. It is most certainly the duty of the owner of any property to pay his fair share of the taxes of a state and municipality where that property is located. Any person or company that openly violates that duty has no place in a court of equity, and the remedy here sought by the plaintiffs to enjoin the collection of this tax is not entitled to consideration by this court under the familiar rule that "he who seeks equity must do equity" or the further rule of law, section 8746, Revised Codes 1921, that "no one can take advantage of his own wrong." By authorizing an injunction in this case, this court in effect approves an attempted fraud.
I deem the correct rule in this class of cases to be that allproperty in the state on the first Monday of March and allproperty in transit to Montana on that day is subject to taxationin Montana if not elsewhere previously more justly assessed. *Page 340 This is in accordance with the Constitution which contemplates the taxation of all property somewhere. This rule works no hardship upon any property owner, and is the only rule which will prevent the evasion of taxation of transitory property. The majority opinion in this case suggests that, "if the contention of defendants is sustained, then it will become the duty of county assessors to assess all personal property which comes into the state during the year without respect to the time of its entry into the state; the increase of domestic animals occurring, and the products of the farm and forest during the various seasons of the year. Under such a construction, harvested wheat and stacked hay would become the subject of taxation immediately upon their severance from the soil." The error of this statement is apparent. The property therein mentioned was not in existence on the first Monday of March, and therefore was not taxable for that year. Referring to the statement that the increase of domestic animals could be taxed, I suggest that bred ewes would have a greater value, and therefore the unborn lambs within the animals might be considered a subject of increased taxation because of the greater value of the mother animals. Lambs unborn on the first Monday of March would not be taxable as such but only with the tax on their mothers.
If this injunction is granted, it will entirely relieve the owners of this property on the 4th day of March, 1935, from the payment of any taxes whatsoever for that year, a loss to Cascade county of over $3,000. The mere statement is abhorrent to honest people, and I cannot assent to the practice. This method of tax evasion is costing the honest taxpayers of the state (perhaps some would be dishonest if they knew the way) thousands of dollars each year.
I believe the legislature should enact a law permitting the assessment of property not shown to be elsewhere taxed, regardless of the date of its entry into the state. *Page 341