The opinion
Decided Marcli 25, 1913.
On the Merits.
“Section 1. That every express company or corporation doing business in this State shall pay to the State of Oregon a license of three (3) per centum upon the gross receipts of such company or corporation received in this State, and every telephone company or corporation doing business in this State, and every telegraph company or corporation doing business in this State, shall pay to the State of Oregon a license of two (2) per centum upon the. gross receipts of such company or corporation received in this State; which license shall be paid annually by such company or corporation to the Treasurer of this State. And for the purpose of ascertaining' the amount of the same, it shall be the duty of the president, secretary, and treasurer, or such of them as reside in this State, or if neither of said officers reside in this State, then of the general manager or other officer or agent of such company or corporation having general control, management or supervision of its business within this State, to transmit to the State Treasurer, on or before the first day of March of each year, a statement, under oath, of the gross receipts of said company or corporation for business transacted within this State during the preceding year, ending December 31st of said year; and if such company or corporation shall fail to make such statement, or to pay any such license, for the period of thirty (30) days from and after such statement is required by this act to be made, or after such license is due and payable, as herein provided, the amount thereof, with the addition of ten (10) per centum thereon for such failure, shall be collected of such company or corporation, for the use of the State, and the same is hereby declared to be and is made a debt due and owing from such company or corporation to the State of Oregon. * *”
In 1907 the legislature enacted a new tax code consisting of 80 sections, found on pages 453 to 484 of the Session Laws of 1907, and in connection therewith enacted a statute supplementary thereto, found in the Session Laws of 1907, at pages 485 to 497. Section 1 of this latter statute provides for an amendment of Section 3037 of the B. & C. Comp., so that the same shall read as follows:
“All real property within this State, and all personal property situated or owned within this State, except such as may be specifically exempted by law, shall be subject to assessment and taxation in equal and ratable proportions.”
Section 2 of this statute proceeds to define what shall be deemed real property as follows:
“The terms land, real estate, and real property, as used in this act, shall be construed to include the land itself, whether laid out in town lots, or otherwise, above and under water, all buildings, structures, substructures, superstructures, and improvements erected upon, under, or above or affixed to the same, and all rights and privileges thereto belonging or in any wise appertaining; and all franchises and privileges granted by or pursuant to any law of this State or municipal ordinance or resolution, owned or used by any person or corporation; other than the right to be a corporation; and all mines, minerals, quarries, fossils, and trees in, under, or upon the land.”
The statute proceeds in Section 3 to define personal estate, and in Section 4 to enumerate the property exempt from taxation. It defines the manner in which property, both real and personal, shall be assessed and taxed, and the jurisdiction in which such assessment and tax shall be levied. Section 39 provides for the repeal of all acts and parts of acts in conflict with the statute of 1907. Section 40 provides that the act shall be without prejudice to the assessment which would otherwise be levied as of March 1, 1907. The act of 1909 creates the board of tax commissioners, and by subdivision 15 of Section 4 thereof requires this board:
“To make an annual assessment, upon an assessment roll to be prepared by said board, of the property having a situs in this State, as hereinafter defined, of all * * express companies, telegraph companies, telephone companies. * *”
Section 5 of this statute reads, in part, as follows:
“The term ‘property,’ as used in this act, shall be deemed to include all property, real and personal, subject to assessment for taxation under this act belonging to the corporation, or held by it as occupant, lessee, or otherwise, and shall include the rights of way, roadbed, cars, rolling stock, tracks, wagons, horses, office furniture, telegraph, telephone and transmission poles, wires, conduits, switchboards, machinery, appliances, appurtenances, and all other property of a like or different kind, used in the carrying on of the business of said corporation, and owned, leased, or operated by them respectively, and all other real and personal property, and all franchises and special franchises; provided, however, that this definition shall not include, apply to, or subject to assessment for taxation by said board, such real estate as is owned and can be conveyed by such corporation under the laws of this State, which is not actually occupied in the exercise of its franchise, or in use in the operation of their corporate business. * *”
Section 7 provides that each corporation, between the 1st day of April and the 15th day of May of each year, shall file with the tax commissioners a statement, under oath. This statement is a comprehensive one. It must set up the par value and the market value of the stock, a statement of the bonds, if any, and of their market value, a list of the real property situate in the State of Oregon and an appraisal of its value, a statement of the personal property owned by the corporation in Oregon and of the value thereof, the total value of the real estate of the corporation outside the State of Oregon, the total value of its personal property outside the State of Oregon, the total length of its lines, and the length of its lines in Oregon. The thirteenth subdivision of Section 7 requires the corporation to give “a statement in detail of the entire gross receipts and net earnings of the company from all sources, stated separately, for the fiscal year next preceding the date of the report.” Section 9 requires the board of tax commissioners, prior to the first Monday of October of each year, to levy an assessment on the property of the company subject to taxation under the act. This section contains the following language:
“* * For the purpose of arriving at the amount and character and true cash value of the property belonging to said companies as appearing upon the assessment roll for the purpose of assessment for taxation under this act, the said board * * may take into consideration the statements filed under this act, the reports, statements or returns of said companies filed in the office of any board, office or commission of this State, or any county thereof, the earning power of said companies, the franchises and special franchises owned or used by said companies (said franchises and special franchises not to be directly assessed, but to be taken into consideration in determining the value of the other property), the assessed valuation of any property of said companies, used in the operation of the business of the companies, and by law required to be assessed by county assessors, and such other evidence of any kinds as may be obtainable bearing thereon. * * In determining the true cash value of the property assessable for taxation by the said board of state tax commissioners of the companies in this act enumerated, when said companies own, lease, operate or use rail, pipe or wire lines or property within and without this State, if this board shall value the entire property within and without the State as a unit, as provided in the next section the said board shall be controlled in ascertaining the property subject to taxation in Oregon by the proportion which the number of miles of main track (meaning thereby main, stem and branch lines), miles of wire, or miles of main pipe lines controlled or used by said company as owner, lessee, or otherwise,. within the State of Oregon bears to the entire mileage of main track as aforesaid, miles of wire or main pipe line controlled or used by said company, as owner, lessee or otherwise.”
This act declared an emergency, and became operative on the 24th of February, 1909. Affirmed.
For appellant there was a brief over the names of Mr. Andrew M. Crawford, Attorney General, Mr. Isaac H. Van Winkle, Assistant Attorney General, and Mr. James W. Crawford, 2nd Assistant Attorney General, with an oral argument by Mr. Van Winkle.
For respondent there was a brief over the names of Messrs. Snow & McCamant and Mr. E. S. Pillsbury, with an oral argument by Mr. Wallace McCamant.-
Opinion by
Me. Chief Justice McBeide.
4. It is not now necessary to decide whether or not the act of 1907 heretofore quoted repealed the act of 1906. In any event, we think it clear that the act of 1909, which is comprehensive in its terms and covers the whole field of taxation embraced in the act of 1906, effected a repeal of that act. It covers the same ground, deals with the same subject, and was, no doubt, intended to be a complete and comprehensive scheme of taxation, revising and taking the place of previous laws for the assessment and taxation of express, telephone, and telegraph companies; and therefore repeals such previous statutes by implication. Little v. Cogswell, 20 Or. 345 ( 25 Pac. 727 ) ; Continental Ins. Co. v. Riggen, 31 Or. 336 ( 48 Pac. 476 ) ; Reed v. Dunbar, 41 Or. 509 ( 69 Pac. 451 ).
5. The contention that the tax for 1908 is due notwithstanding the repeal of the act by the legislature of 1909 cannot be upheld. The tax which was levied in 1908 under the act of 1906 did not become payable until March 31, 1909, at which date, in the language of the act, it is “made a debt due and owing from such company or corporation to the State of Oregon.” The act of February 24, 1909, contained an emergency clause, and was in full force and effect from that date, so that no debt existed on account of the gross earnings tax of 1908 at the time the law of 1906 was repealed.
The judgment of the circuit court is affirmed.
Affirmed.
Mr. Justice Burnett took no part in the consideration of this case.