It was admitted by both respondent and appellant that the tax in question was a property tax, hence the question involved in this appeal is whether section 2101, Revised Codes 1921, as amended, is unconstitutional, first, as constituting an interference *Page 283 with interstate commerce; second, as violating the uniformity clause of our state Constitution; and, third, as authorizing a tax exceeding the constitutional limitation. Whether this tax constitutes an interference with interstate commerce depends upon whether the taxing of gross earnings is a tax against the property of a corporation or against a corporation, for, if the state has the right to compute the property tax of the corporation on the basis of a fixed percentage of the gross earnings, then such tax could not be held unconstitutional because of a violation of the interstate commerce clause. (State v. Northwest Telephone Exch. Co., 107 Minn. 390,120 N.W. 534; State v. United States Express Co., 114 Minn. 346,131 N.W. 489, 37 L.R.A. (n.s.) 1127; affirmed, 223 U.S. 335,32 Sup. Ct. 211, 56 L. Ed. 459.)
The tax does not violate the uniformity clause of our state Constitution. (Hilger v. Moore, 56 Mont. 147, 182 P. 477;Chicago N.W. Ry. Co. v. State, 128 Wis. 553, 108 N.W. 557.) The placing of the property of freight line companies in a different classification than that of railroads does not constitute such a lack of uniformity as would make this tax unconstitutional. (State v. Lathrop, 10 La. Ann. 398; Cityof New Orleans v. Kaufman, 29 La. Ann. 283, 29 Am. Rep. 328.)
Counsel for respondent alleges that the tax in question is greatly in excess of what it would have been if levied solely upon the actual value of the cars of respondent company used within this state, but the state is not required to take the actual values of the cars in question as the taxable value of the property belonging to the plaintiff. (Cudahy Packing Co. v.State of Minnesota, 246 U.S. 450, 38 Sup. Ct. 373,62 L. Ed. 827.)
This tax would not exceed the constitutional limitation unless such tax exceeds the amount that would have to be paid if the property tax was subject to the same taxation as other property in the state. Section 9, Article XII, relates only to the general property of the state which is assessed for state, county, school and municipal purposes and does not apply to a tax in lieu of all other taxes. The property of a freight *Page 284 line company is of a fugitive transit nature difficult of assessment for any purpose and almost impossible to assess for county, school and other purposes. For this reason the legislature has assessed against such property a tax of 5 per cent. on its gross earnings in lieu of all other taxes. The above constitutional prohibition was intended to prevent confiscation of property through taxation — not to limit the amount of money which the state could receive, and it is at once apparent that unless the tax in lieu of all other taxes exceeds the amount which the freight line company would have to pay if it paid its share of the other taxes of the different subdivisions of the state, together with the general state tax, such tax does not exceed the limit as contemplated by the Constitution. It would be unreasonable to say that such freight line companies could enjoy the protection of our county governments by simply paying the general state tax while other property owners of the state are required to support the other branches of the state government for their benefit. (Central R.R. Co. of New Jersey v. StateBoard of Assessors, 75 N.J.L. 120, 67 A. 672; United NewJersey R. Canal Co. v. Parker, 75 N.J.L. 771, 69 A. 239;Western Union Tel. Co. v. State Board of Assessors, 80 Ala. 273, 60 Am. Rep. 99.) The cars of the respondent have a situs in Montana for purposes of taxation. (Union Refrigerator Transit Co. v.Lynch, 18 Utah, 378, 55 P. 639, 48 L.R.A. 790; affirmed,177 U.S. 149, 20 Sup. Ct. 631, 44 L. Ed. 708; Hall v. AmericanRefrigerator Transit Co., 24 Colo. 291, 51 P. 421, 65 Am. St. Rep. 223; Endicott, Johnson Co. v. Multnomah County, 96 Or. 679,190 P. 1109; Hamilton Gleason Co. v. Emery County,75 Utah, 406, 285 P. 1006; Pacific Fruit Express Co. v. Cityof Yuma, 32 Ariz. 601, 261 P. 49; Standard Paving Co. v.County Board, etc., 135 Okla. 15, 273 P. 201; 61 C.J. 304, 547.) *Page 285
The tax provided for by section 2101, Revised Codes 1921, as amended by Chapter 75, Laws of 1931, appears to be a property tax. (In re Skelton Lead Zinc, etc., 81 Okla. 134,197 P. 495; Redfield v. Fisher, 135 Or. 180, 292 P. 813,295 P. 461, 73 A.L.R. 721.) The tax is valid. (State v. Wells Fargo Co., 146 Minn. 444, 179 N.W. 221; Pacific Fruit Express Co. v.City of Yuma, 32 Ariz. 601, 261 P. 49.)
Should the court take the view, however, that a property tax cannot be imposed upon the respondent in the manner required by the Freight Line Company Taxation Law, then it should consider whether or not the tax can stand as a license or occupation tax. An occupation tax of the character prescribed has been upheld by the courts. (Mid-Northern Oil Co. v. Walker, 65 Mont. 414,211 P. 353; East Ohio Gas Co. v. Tax Commission,283 U.S. 465, 51 Sup. Ct. 499, 75 L. Ed. 1171; 14 Fletcher, Cyclopedia Corporations, sec. 6919; 61 C.J. 303, 304.)
Should the court be of the opinion that the law cannot be made to operate at all, then we submit the judgment should be reversed and the case ordered tried by the district court, for, on its admissions made in the complaint, the respondent owes the state of Montana a considerable sum of money in the shape of taxes. (Northern P. Ry. Co. v. Sanders County, 66 Mont. 608,214 P. 396; Wibaux Improvement Co. v. Breitenfeldt, 67 Mont. 206,215 P. 222; Johnson v. Johnson, 92 Mont. 512, 15 P.2d 842; 61 C.J. 1008.) If the statute in question is construed as imposing a tax on gross earnings it is clearly violative of the commerce clause of the federal Constitution. (Fargo v. Michigan, 121 U.S. 230,7 Sup. Ct. 857, 30 L. Ed. 888; Philadelphia S.M.S. Co. v.Pennsylvania, 122 U.S. 326, 7 Sup. Ct. 1118, 30 L. Ed. 1200;Galveston, H. S.A.R. Co. v. Texas, 210 U.S. 217,28 Sup. Ct. 638, 52 L. Ed. 1031.) *Page 286
If the tax is a license tax, it is also violative of the commerce clause, as it is not within the power of the state to impose a license tax on the privilege of engaging in interstate commerce. (Sprout v. South Bend, 277 U.S. 163,48 Sup. Ct. 502, 72 L. Ed. 833; Leloup v. Port of Mobile, 127 U.S. 640,8 Sup. Ct. 1380, 32 L. Ed. 311.)
It is quite apparent that the tax was intended as a property tax or a tax upon the cars. In fact, the statute will not admit of any other construction, and in the brief for appellant it is conceded that the tax is a property tax. Considered as a property tax or a tax on the cars, the statute is violative of sections 1 and 11 of Article XII of the Montana Constitution. (Wells Fargo Co. v. Johnson, 214 Fed. 180; affirmed, 229 U.S. 234,36 Sup. Ct. 62, 60 L. Ed. 243.)
It should not require argument to demonstrate that a valuation of property, based upon gross earnings, can have no relation to its full cash value, which is the amount for which the property will be taken in payment of a just debt due from a solvent debtor. As a matter of fact, by such method of valuation there could not possibly be any uniformity as between properties of the same character and value, or between property so valued, and other property assessed as required by the Constitution and laws of Montana. This is shown very clearly by the opinion of Circuit Judge Sanborn in the case of Wells Fargo Co. v. Johnson, 214 Fed. 180, above cited. (See, also, State v. State Board ofEqualization, 56 Mont. 413, 185 P. 708, 186 P. 697.) The statute declares that "the amount of such total gross earnings * * * shall be deemed and considered as the value for taxation of all cars," etc. The State Board of Equalization is not required to merely take the gross earnings into consideration in fixing the value but must accept such gross earnings as the value. In establishing such an arbitrary rule for ascertaining the value of the cars, the statute is also violative of the due process of law clause of the Fourteenth Amendment and the commerce clause of the federal Constitution. (Union Tank Line Co. v. Wright,249 U.S. 275, 39 Sup. Ct. 276, 63 L. Ed. 602.) *Page 287
It is contended by appellant that the statute in question is not violative of section 9, supra, as the tax in question is "in lieu of all other taxes." As a matter of fact, the statute does not so provide, and if the statute had so provided, it would be in violation of the Constitution of Montana. (Northwestern M.L.Inc. Co. v. Lewis Clark County, 28 Mont. 484, 72 P. 982, 98 Am. St. Rep. 572.) The attorney general has appealed, on behalf of the state treasurer, from a judgment entered on the pleadings in an action instituted by the Fruit Growers Express Company, a Delaware corporation, against F.E. Williams, treasurer of the state of Montana, for the recovery of certain taxes paid under protest. On the hearing before this court James J. Brett, the present state treasurer, was substituted for F.E. Williams, retired. The pleadings consist of the complaint and answer.
A. By paragraphs 1 to 5, inclusive, the complaint alleges the following facts: The plaintiff is a "Freight Line Company" within the definition of such a company contained in section 2097 of the Revised Codes of 1921. Prior to June 1, 1931, the State Board of Equalization ascertained and determined the total gross earnings of the plaintiff from the operation of its cars in Montana "as hereinafter stated," to be $341,605.30, which was taken and deemed to be "the value for taxation of the cars of this plaintiff having a situs for taxation in this state for the year 1930," and thereupon levied and assessed a tax of 5 per cent. of such gross earnings and valuation, amounting to the sum of $17,080.27, "as authorized and required by section 2101 of the Revised Codes of Montana as amended by section 2 of Chapter 185 of the Laws * * * of 1925 and again amended by section 1 of Chapter 75 of the Laws of * * * 1931." The board duly notified the plaintiff of its action and plaintiff filed its written protest challenging *Page 288 the board's authority on constitutional grounds, a copy of the notice being made a part of the complaint. On November 20, 1931, the plaintiff, deeming the tax unlawful, paid the amount under protest, a copy of the notice of protest being attached to and made a part of the complaint. These allegations were admitted by the answer.
B. Paragraph 8 of the complaint alleges that "the average number of cars of this plaintiff within the State of Montana each day during the year 1930 did not exceed 234 cars, the true cash value of which was not to exceed $1,000 per car." The answer declares that the defendant "has no knowledge or information sufficient to form a belief" as to the number of cars; denies the allegation as to the value, and alleges that "the true cash value of the same for taxation purposes was $4,000 each."
C. With reference to the following allegations the answer alleges "defendant has not sufficient knowledge or information upon which to form a belief and therefore denies the same."
"This plaintiff is not and never has been a common carrier, and its business during the year 1930 consisted wholly in the furnishing and supplying of its refrigerator cars and protective service for the carriage and transportation over railroads throughout the United States of perishable freight and * * * compensation of two cents per mile for the distance each car, whether loaded or empty, was * * * hauled," the total compensation received for 1930 being taken by the state board as the gross earnings of the company. That all of the cars so furnished were "transported through and across said state, from and into other states, or from points within to points without said state, and constituted interstate commerce."
D. The following allegations are denied:
That the plaintiff has not now and never had office, place of business, agent or representative in the state, and, in 1930, had no property in the state except the cars moving in interstate commerce. *Page 289
That the gross earnings mentioned have no relation whatever to the full cash value of the average number of cars in the state daily and are grossly in excess of such cash value, by reason of which the taxation attacked deprives plaintiff of property without due process of law.
That the taxation and the Act under which the state levied it violate the Fourteenth Amendment, attempt to regulate interstate commerce, and therefore violate section 8 of Article I of the federal Constitution.
That the Act violates section 1 of Article XII of the Constitution of Montana, which requires a "just valuation" of all property for taxation.
That the Act violates the Fourteenth Amendment and section 11 of Article XII of our Constitution in that it does not provide for a uniform rate on all property of like character, and fixes the rate at 100 per cent., whereas the cars of other companies are taxed on the 40 per cent. basis.
That the Act violates section 9 or Article XII of our Constitution in that the rate prescribed is grossly in excess of the maximum for state purposes.
On submission of the matter the truth of the allegations set forth under the head C, above, was conceded, and under the issue raised as to the constitutionality of the Act, and as the provision attacked clearly provides for the determination of the gross earnings of the company and not the full cash value of the cars employed in Montana, the denial of the allegation as to value and the only affirmative allegation of the answer, under head D above, become immaterial.
All material allegations of fact are, therefore, admitted and the denials go only to the conclusions of the pleader and the allegations of the legal propositions contended for, and present but questions of law properly determinable on motion for judgment on the pleadings; the attorney general makes no contention to the contrary.
Freight Line Companies are defined as those "engaged in the business of operating cars, or * * * furnishing or leasing cars, not otherwise listed for taxation in Montana, for *Page 290 the transportation of freight * * * over any railway * * * lines not * * * owned, leased, or operated by such company." (Sec. 2097, Rev. Codes 1921.) "For the purpose of taxation, all cars used exclusively within this state, or used partially within and without this state" are deemed to have a situs in the state. (Sec. 2098, Id.) Every such company is required to make an annual report to the State Board of Equalization, showing, among other things, "the total gross earnings received from all sources from the operation of such freight line company within this state for the year next preceding the first day of April." (Sec. 2099, Id.) The date is changed to January 1 by section 1, Chapter 185, Laws of 1925. The "total gross earnings" shall be construed to mean "all earnings on business beginning and ending within the state, and a proportion, based upon the proportion of mileage over which said business is done, of all earnings on all interstate business passing through or into or out of this state." (Sec. 2100, Id.)
The "total gross earnings" of each freight line company, when ascertained and determined by the State Board of Equalization, "shall be deemed and considered as the assessed value" for taxation of all cars operated, furnished or leased by the company under consideration, and, having thus fixed and determined the "valuation" of the company's "property," the board is required to "levy and assess" against "such property" a tax of 5 per cent. of such "valuation." (Sec. 2101, Rev. Codes 1921, amended by sec. 2 of Chapter 185, Laws of 1925, and sec. 1 of Chapter 75, Laws of 1931.) By the amendment of 1925 this "property" was placed in class 7, and in 1931 it was transferred to class 1. (Sees. 1999, 2000, Rev. Codes 1921.)
Plaintiff and defendant agree that the tax in question is a[1] property tax and that the statute challenged provides for the imposition of such tax and not a license tax. This is in conformity with the holding of the supreme court of Minnesota declaring that a "gross earnings tax" is a "system by which the amount of tax upon the property is determined * * * *Page 291 a tax upon the property, and not upon the corporation" (State v. Northwestern Telephone Exchange Co., 107 Minn. 390,120 N.W. 534, 538); it is not a tax on the earnings of the corporation nor on its right to engage in business in the state, but is a tax on its property within the state (State v. United States ExpressCo., 114 Minn. 346, 131 N.W. 489, 37 L.R.A. (n.s.) 1127).
In the first case cited the court declared the "gross earnings tax law" was not intended to change the character of the tax, but was intended to "change the method of computation," i.e., to require computation on the basis of the earnings of the property in lieu of computation on the basis of the value of such property; in the second case the court approved this "method of computation" and held that the statute, as construed with reference to express companies, did not violate the commerce clause of the federal Constitution and did not violate the uniformity clause of the state Constitution. The federal question involved in the latter case was submitted to the Supreme Court of the United States on writ of error and, adopting the state court's decision as to what classes of earnings were included in the computation, Mr. Justice Day, speaking for the court, held that the statute did not violate the commerce clause of the federal Constitution. (223 U.S. 335, 32 Sup. Ct. 211,56 L. Ed. 459.)
Thus it will be seen that a statute providing for a property tax based on the gross earnings of the property used in interstate commerce may be so drafted as not to contravene the commerce clause of the federal Constitution. The above decisions are relied upon by the attorney general, while counsel for plaintiff contend that "if the statute is construed as imposing a tax on gross earnings, it is clearly violative of the commerce clause," citing Fargo v. Michigan, 121 U.S. 230,7 Sup. Ct. 857, 30 L. Ed. 888, Philadelphia S.M.S.S. Co. v.Pennsylvania, 122 U.S. 326, 7 Sup. Ct. 1118, 30 L. Ed. 1200, andGalveston, H. S.A. Ry. Co. v. Texas, 210 U.S. 217,28 Sup. Ct. 638, 52 L. Ed. 1031. These cases, with others, are discussed and distinguished by Mr. Justice Day in United *Page 292 States Express Co. v. Minnesota, above. We need not here determine in which class the present statute falls.
Nor need we now burden the already overworked Fourteenth Amendment with responsibility for the nullification of the Act before us; a consideration of the applicable provisions of the state Constitution will suffice.
The declaration that the Minnesota statute does not violate the Constitution of that state may be justified by the proviso contained in Article IX thereof, corresponding to our section 1 of Article XII, commanding uniformity of taxation. This proviso is that "nothing herein contained shall be construed to affect, modify or repeal any existing law providing for the taxation of the gross earnings of railroads." (Sec. 1.) We, of course, have no such provision in our Constitution; it is akin to our special provision for the taxation of mines and the net proceeds thereof. (Sec. 3, Article XII.)
South Dakota, whose Constitution likewise contained no such provision as that found in the Minnesota Constitution, in 1907 passed an Act (Laws 1907, Chap. 64) requiring the gross earnings of express companies to be used as a factor in determining the value of the property of such companies used in the state, for tax purposes, and this statute likewise became the subject of an opinion written by Mr. Justice Day. The statute was held to violate the requirements of the South Dakota Constitution (Art. XI, sec. 2) that all taxation be in proportion to the value of the property assessed, and that corporate property should be assessed, as near as may be, by the same methods as are provided for assessing the value of individual property. (Johnson v.Wells Fargo Co., 239 U.S. 234, 36 Sup. Ct. 62, 60 L. Ed. 243.) In this case the express company relied upon the decision inUnited States Express Co. v. Minnesota, above; Justice Day explained that "in that case, the law was specifically authorized by the Constitution of the state," the contrary being true as to the Constitution of South Dakota.
Our Constitution provides that "the necessary revenue for the support and maintenance of the state shall be provided *Page 293 by the legislative assembly, which shall levy a uniform rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, except that specially provided for in this Article." (Sec. 1.) "The power to tax corporations or corporate property shall never be relinquished or suspended, and all corporations in this state, or doing business therein, shall be subject to taxation * * * on real and personal property owned or used by them." (Sec. 7.) And "taxes * * * shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax." (Sec. 11; all of Article XII, Constitution of Montana.)
The word "property," within the meaning of the above[2] provisions, is declared to include "moneys, credits, bonds, stocks, franchises and all matters and things (real, personal and mixed) capable of private ownership." (Sec. 17, Art. XII.) This definition is sufficiently comprehensive to include "all matters and things, visible and invisible, tangible and intangible, corporeal and incorporeal, capable of private ownership" (Northwestern Mut. Life Ins. Co. v. Lewis ClarkeCounty, 28 Mont. 484, 72 P. 982, 983, 98 Am. St. Rep. 572), but however comprehensive, if the tax is imposed in order to provide "the necessary revenue for the support" of the state, and not a license tax such as is authorized by the final clause of section 1, Article XII, above, the tax must be levied and assessed against the "property" of the taxpayer, upon a "just valuation" of such property "for taxation."
The term "subjects" of taxation has reference to the different[3] kinds of property liable to taxation, and on each class of these "subjects" the taxes must be uniform, while the method of assessment means the rule for ascertaining values, and this also must be uniform, to the end that a just valuation of all taxable property may be secured. (Hilger v. Moore, 56 Mont. 146,182 P. 477.) It is, therefore, clear that our Constitution requires that the method of computing the tax on all property within a class must be the same and that *Page 294 the basis of the computation must be the value of the property to be assessed.
Section 16 of Article XII, above, declares that "all property[4] shall be assessed in the manner prescribed by law except as is otherwise provided in this Constitution." The constitutional provisions as to the assessment of property are not, therefore, self-executing and it is within the power of the legislature to prescribe the "manner" in which the value of property for taxation purposes shall be determined, so long as the principles of uniformity and just valuation are observed and the rule laid down is not arbitrary. (State v. State Board ofEqualization, 56 Mont. 413, 185 P. 708.)
The requirement of a "just valuation" is the equivalent of a[5] "correct, honest, and true" valuation in the assessment of property and means that such value shall be ascertained and employed as the basis of taxation. (State v. Smith,158 Ind. 543, 63 N.E. 25, 214, 64 N.E. 18, 63 L.R.A. 116.) While mere errors of judgment by taxing officers in making assessments of property for taxation will not support a claim of unjust discrimination, the prescribing of a method of assessment which intentionally deviates from the requirements of a "just valuation" and practical uniformity, renders the statute so prescribing void. (Colonial Investment Co. v. Nolan, 100 Fla. 1349, 131 So. 178.)
The "gross earnings" of the cars of the plaintiff company by[6] reason of any species of operation within or through this state have, and can have, no relation to the "correct, honest, and true" value of the cars; they may in any one year be far above or far below the full cash value of the cars operating over lines passing through this state (see Western Union v. StateBoard, 80 Ala. 273, 60 Am. Rep. 99); it is, therefore, manifest that the statute under consideration is unconstitutional and void.
All such attempts to deviate from the assessment of property on the basis of its value, in states having constitutional provisions similar to our own, have been condemned when brought before the courts. (Wells Fargo Co. v. Johnson, (C.C.A.) *Page 295 214 Fed. 180, L.R.A. 1916C, 522; Id., 239 U.S. 234,36 Sup. Ct. 62, 60 L. Ed. 243, above; Union Tank Line Co. v. Wright,249 U.S. 275, 39 Sup. Ct. 276, 63 L. Ed. 602, and cases cited;Chicago etc. Ry. v. Robertson, 122 Miss. 417, 84 So. 449.)
Judgment affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES ANGSTMAN and ANDERSON concur.
MR. JUSTICE STEWART, being disqualified, did not hear the argument and takes no part in the foregoing decision.