Statement Opposing Jurisdiction — Johnson Oil Refining Co. v. Oklahoma Ex Rel. Mitchell

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SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1982 ae 2

' JOHNSON OIL REFINING COMPANY, Apreutawr,

vs.

THE STATE OF OKLAHOMA ex Ret. C. E.

MITCHELL, County - ATTORNEY OF PawNEE

County, OKLAHOMA, ET.AL.

APPEAL FROM THE SUPREME COURT OF THE STATE OF

OKLAHOMA.

STATEMENT OPPOSING JURISDICTION AND

MOTION TO DISMISS.

é

' J. BERRY KING, ,

Attorney Generfl of Oklahoma, '

J F. M. DUDLEY, ° 7

W. T. CLEETON;

_ ED. WAITE CLARK,

Counsel for Appellees.

INDEX.

Supsect INDEX.

Statement opposing jurisdiction and motion to dismiss

Exhibit A. (Opinion of the Supreme Court of Oklahoma)

TABLE OF Cases CITED.

_ Alabama Railway Co. v. Bretete. 274 U. S. 76

_ Appleby v. New York, 271 U. S: 364

Coe v. Errol, 116 U. S. 517......... iva enaones beeaus

Frick v. Pennsylvania, 268 U. S. 473... .:

Hanover Insurance Co. v. Harding, 272

Ireland v..Woods, 246 U. S. 323

Knights of Pythias v. Meyer, 264 U. S. ‘30

Pullman ‘Palace Car Co. v. Pennsylvania, 141 U. S. 18..

—— & Loan Soc. v. Multnomah County, 169 U. S. 421,

t. Louis v. Wiggins Ferry Co., 11 Wall. 423 .

Ward & Gow ¥. Krinsky, 258 U. ae Riaialgialnaip om A

STATUTES. oan

ne Ghteheme Statutes of 1921, Section 9574

Constitution of the United States, 14th ~Amendment

Judicial Code, Section 237, as. amended (28 U. S. C. A; Section

wananwankanans

‘SUPREME COURT OF THE UNITED STATES.

A

| No. 843

JOHNSON OIL REFINING COMPANY, Apretiant,

& vs.

THE STATE OF OKLAHOMA ex Ret: C..E.

MITCHELL, County ATTORNEY oF PAWNEE

Case, OxLaHoma, BT AL,

on

| APPEAL ‘FROM THE SUPREME COURT OF THE STATE OF .

. OKLAHOMA.

a0

sy «

, STATEMENT. OPPOSING JURISDICTION AND —

‘ MOTION TO DISMISS.

‘Maw pr vision vas Gul,

The appellee, i in support of its assertion of belief’

that the re exists in the above entitled case no grounds

°

of jurisdiction for review by this court, and also for

- grounds of dismissal, respectfully represents : a* 3

. Jurisdiction of review is sought td be established by |

-appellant, on the grounds of Section 237 of the Judi-

cial Code, as amended (28 U. S. ©. A‘, Sec. 344);

quoted under is ll of appellant’ s | statement, as fol-

lows: |

-

— — * %. oe én in question the

validity of a statute of any State, on the ground

- of - its being repugnant te the Constitution,

' treaties, or laws of the United States, and the |

decision is in favor of its validity, may be re-

. . viewed il the. Supreme Court upon a writ of

‘error.’ - |

'. The Oklahoma Statute asserted (unde&“‘B’’ of ap-

-. peliant’s statement) to have been drawn in question.

- on the ground of its being repugnant to the Constitu-

‘tion of the United States is Section 9574, Compiled

Oklahoma Statutes of 1921, which ‘reads as follows: |

“All property in this state, whether real or

personal, including the property of corpora-

. tions, banks and bankers, except such as is ex-

empt, shall be subject to taxation.”’

Relief ‘under Section 237° of the Judicial “Code. iss

sought - upon the theory, as set out on pages six and

- seven of appellant’ s statement, that this Court. will ac-

_ cept the interpretation. placed upon the Oklahoma

statute by the Supreme Court of Oklahoma; and that

the Supreme -Court of the State of Oklahoma has in-. |

terpreted Seciion 9574, C. O-S. 1921, in such a manner

as to make it contravene the 14th Amendment of the

3

Constitution of the United States; thus giving this

Court jurisdiction. . | |

Under this doctrine, this Court is asked to ‘‘read

‘into the Statute’’ the interpretation of the. Oklahoma '

Supreme Court: ;

Citing Knights of Pythias: v. Meyer, 264 U.S.

30; Appleby v. New York,.271 U. S. 364; Ward

_ &-Gow v. Krinsky, 259 U. 8. 503; Hanover In-

surance Co. v. Harding, 272 U. S..494; Alabama

Railway Co. v. Kentucky, 274 U. 8. 76, and other

cases referred to but not’ discussed. ©

Under the cases cited by appellant to the effect that -

this Court will accept the State court’s interpretation

of a State statute, it is apparent that this Court will

Jook only to that iriterpretation, as shown by the deci-

sion of the State court. |

Inasmuch as this Court will not, for purposes of

determining jurisdiction, review the State court’s de- ’

termination as to the facts in the case, a review of con-

tentions in. the State court as to the:facts has no place

in this statement. ‘ ° so

. The Supreme Court, of Oklahoma, in its Qubdien of

. December 20, which is set out in full, attached hereto,

marked Exhibit ‘‘A’’, after reciting that no ad valorem

tax was paid on the cars in Hlinois, the domicile of the

~ Company, uses the following language: .

. “Section 9574, C. O. S. 1921 (C.°O. S. —,

Sec. 12317), provides:

‘¢¢ All property in this, state, whether real or.

personal, including the property of enn

o

tions, baaiie and bankers, except such as is ex-

empt, shall be subject to taxation.’ ._—_

‘<A lawful tax upon this property is depend-

ent upon whether it has a situs for taxation at

the time when and the place where. the levy is

sought to be made.

‘‘The corporation resists the tax in whole, as-

serting the situs for taxation is not within this

State; that despite the fact it listed for taxa- ~

tion in Pawnee County, 64 cars during oné of

the years, it is not estopped to deny taxation

in toto.- It asserts that the cars were but tem-

porarily at Cleveland as an incident to its in-

terstate commerce. -- However, we find that the

absence of the cars from. Cleveland is but an

_ incident to the conduct of its business. The

corporation owns but one refinery. It is lo-

cated at Cleveland. In our opinion the taxable

situs is there. Travis v. Dicky, 96 Ok. 256, 222

Pac. 527. State v. Timbrook’s -Est., (La.) 129

S. W..1068. When this property is away from

‘that point it is in transit, but its destination is

always Cleveland, Pawnee County, Okla. So

this property has acquired a definite situs which

‘takes it out of. the general rule that personal

property has its taxable situs at the domicile

of the owner. Gulf Ref. v. Co. v. Tillinghast,

(Mo. App.) 94 So. 418, 26 R. C. L. 273. Within

the terms of the statute these cars constitute |

‘property within the State’. They are merely

temporarily absent at times from Cleveland re-

finery, and then’ in transit for the delivery of

products at various points. The entire number

of tank cars is taxable in Pawnee County.

Prairie Cattle Co. v. Williamson, 5 Ok, 488, 49

—_ =

.

5 - —

In holding no cars taxable in Osage ‘County, the

Court further said:

Jn our opinion these cars did not have a

- permanent abiding place within Osage County,

and were not subject to taxation otherwise than

in Pawnee County.”’

As we conceive it, the,above is the interpretation to

which this Court will look. .

The Supreme Court of Oklahoma interprets Section

' 9574, C. O. S. 1921, to tax property which has an actual

. situs, a permanent abiding place, within the State.

In the language of this Court in Coe v. Errol, infra;

in considering the right of a State tq subject to taxa-

tion all personal property having an actual situs within |

its borders, ‘*It is hardly necessary to cite authorities

on a point so elementary.”’

“The right of the State, in which personal

property is situated, to tax it, is not affected

by the fact that the owner ‘resides in another

‘State, which taxes him for the*same property

as a part of his general estate attached to his

person. Coe v. Errol, 116 U. 8. 517.’”

To the same effect:

Pullman Palace Car Co. v. Pennsylvania, 141

U.S. 18. ee.

St. Louis v. Wiggins Ferry Co., 11 Wall. 423.

Savings € Loan Soc. v. Multnomah County, 169 ©

U,S. 421. . . :

- Frick v. Rennsylvania, 268 U. S. 473.

Oo

©

eapk dee 6

The Supreme Court of Oklalioma found the actual

situs to be in Pawnee County and the property, for

that. reason,- there taxable in accordance with Sect. ,

9574, C. O..8. 1921. Surely this Court will not, in

considering jurisdiction, go behind that finding + fact

. on the part of the State Court.

“As to whether a tax is in accordance with

a law of a State, the decision of the highest

Court of a State is conclusive.’’ Pullman Pal-

ace Car Co: v. Pennsylvania, 141 U.S. 23.

‘We said in Champion Lumber Co. x. Fisher,

227 U. S..445, 451, 33 Sup. Ct. 329, 57 L. Ed. 591,

that the validity of a statute of the United

States or an authority exercised thereunder is

drawn in question when the existence or con-

stitutionality or legality of such statute or au- -

thority is denied, ‘and the denial forms the sub-

ject of direct inquiry. A dispute of the facts

- upon which the authority was exercised is not

a dispute of its validity. See, also, Foreman

v. Meyer, 227 U. S. 452, 33 Sup. Ct. 331, 57

, L. Ed. 594. If there be no dispute about the

facts, Hyatt v. People ex rel. Corkran, 188 U.S.

691, 23 Sup. Ct. 456, 47 L. Ed. 657, might apply.

And necessarily the same principle and comment.

are applicable when there is drawn in question. .

the validity of a statute of or authority: exer-

_ eised’ under a state.”’ ‘Ireland v. Woods, 246

U.S. 323. :

The appellant’s contenfion of’ the uncontitutionslity

of Section 9574, C. 0.8 1921, was not urged upon the

Trial Court nor open the State Supreme Court.

Nn ee ee ee

7

Wuenerore, for the reasons afore am forth, appel-

lee respectfully moves the court to dismis$ this appeal

one for lack of. jurisdiction, —

J: BERRY KING,

Attorney General of the State of Oklahoma.

F. M. DUDLEY,

Assistant Attorney General:

W. T. CLEETON,

County Attorney of Pawnee County,

State of Oklahoma.

ED. WAITE CLARK,

' Special Counsel..

8

EXHIBIT ‘A.’

IN THE SUPREME COURT OF THE STATE OF

| OKLAHOMA.

No. 23218.

In the Matter of the Proposed Assessment of £ Omittaa

_ Property of JOHNSON Orn Rerinixe Company.

erent from the County Court of Paw nee County, State

of Oklahoma. °

Menevahile L. N. Kimrey, Judge.

“aye | Affirmed. —

Ro No. 23219

In the Matter of the Proposed Assessment of Omitted

- Property of Jounson Ow Rerinine Company.

Error from the County Court of. Pawnee Conny, State ©

. of Oklahoma.

Honorable L. N. Kumeey, Judge...

No. 23342:

In the Matter of the Proposed Assessment and

' Valuation of Property of JOHNSON Ow REFINING

‘Company. ~ : : oe

Error from the District Court of ‘Pawnee ‘County, 7

State of Oklahoma.

Honorable Thurman S. Hurst, Judge.

Reversed and Remanded.

9

No. 23334.

In the Matter of the Proposed Assessnient of Omitted

Property of Jounson Om Rerinina Company.

Error from the County Court of Osage County, State

of Oklahoma. |

Honorable Henry Wood, Judge.

Reversed. : :

SyYLLaBus.

Where tank cars are owned by a refining company

incorpofated in a foreign state, but authorized to do

business in this State, it having but one refinery and

that located in this State and such tank cars are used

by such company to transport refined products in in.

trastate and interstate commerce and all-of such cars -—

are returnable when empty to. the -refinery, all such

cars are taxable as personal property of such corpora-

tion in the county where such refinery is located. None

of such cars are taxable in another county merely be-

cause some of such cars are temporarily within such

- other county. © ais

- (. E: Mitchell, County Attorney-of Pawnee County;

_ Ed. Waite Clark, P. E. Rowe, R. K. Robertson for

Pawnee County. ae

C. K. Templeton, County Attorney of Osage County ;

Leander Hall, Frank T. McCoy, John- R. Pearson,

John T. Craig for Osage County. ate,

" Chas. Y. Freeman, McCollum_& McCollum, West,

Gibson, Sherman, Davidson #f Hil for Johnson Oil

Refining Company.

| -

Ruitey, J.: . 2.

Causes) 23,218, and +23,219,‘ originated in the

County Treasurer’s office of Pawnee County. They

were begun by the Tax Ferret. Appeals were taken ©

to the County Court and tried there by stipulation

‘upon the same evidence. The appeals here are sep-

arate. The-County Court directed the entry upon the

- tax rolls of‘the taxable value of 380 tank cars owned

by the Johnson Refining Company for the years

1925-28, inclusive. The taxable situs was found to be

at Cleveland, Pawnee County, Oklahoma. From the ©

County Court appeals were perfected to this Court. __

' Cause #23,342, originated in the Board of Equaliza-

tion of Pawnee County. The Johnson Refining Com-

pany had listed for taxation for the year 1931, tank

cars in the number 64. The Board upon notice assessed

381such cars. The refinery appealed to the district

court where a judgment was entered directing the tax-

ation of what was found to be the average number of.

tank cars (64) situated in the County during the year.

From that judgment both the Cqunty and the ae

have appealed to this Court. i

' These tank cars are engaged i in isterstate and inten

state commierce. By the use of them the Johnson Oil .

Refinery Company transports refined petroleum prod-

ucts from its ‘refinery at Cleveland, Pawnee County,

Oklahoma, to various points within and without. this

State. Occasionally the refinery purchases for ‘re-

sale products from other refineries and in that event .

the cars are shunted elsewhere for that purpose. These

cars are marked: ‘‘Johnson Oil Refining Company, |

Cleveland, Oklahoma’’, or ‘‘when empty return to

Johnson Oil Refining Company, Cleveland; Okla-

homa’’. The empty. cars are, unless diverted by spe;

cial order, as aforesaid, returned to Cleveland. Re-

pair trackage is maintained at Cleveland. This ac-

s

DOLL PAP LGD GEL IO EOI LGE LS LIE EE ES SIN LARIAT EM NTE

11

commodates from 12 to 15 cars, and at that point alone

is located replacements and material for repair of

these cars. Other trackage ‘at Cleveland accommo-

- dates 65 cars. -The refinery loads from 35 to 40 cars

per day. The cars upon return remain upon the tracks

from 24 hours to 10 days depending on demand. This

‘company is incorporated under the laws of Illinois and

maintains an office at Chicago, but no trackage for the

- ears is there., Cleveland is the one ‘place where the

company always: has use for these cars. All of these

_ cars are allocated to the tefinery at Cleveland, although —

movements of the cars in- the’ delivery of products

~ geems to be the result of sales contracts made from . +

the office at Chicago. O. C. Goward is the ‘superin-_

tendent of transportation for the ‘refinery, whose loca-

tien is Cleveland. The Cleveland office had control

and ‘supervision of these cars (R. p. 34, Cause

23,342). Empty cars are stored at Osage, Osage

County, Oklahoma, and Parsons by. the railroad com-

pany when.congestion occurs. They are subject toorder —

and return to Cleveland when needed. The need is ©

communicated to the railroad each day (R. p. 38, Cause °

423,342). No tax is paid on these cars in’ Oklahoma,

. and no ad valorem tax is paid upon them in Illinois (R.

p. 4, Cause #23,342). . oo

Section 9574, G..O.S.1921, provides :

_ All property in this State, whether real or —

- personal, including the property of corpora-

tions, banks and bankers except such as is ex-

empt, shall be subject to taxation.’’ — ;

A lawful tax upon this po is de dent upon

ee

whether it has a situs for taxation at the|time when .

and the place where the levy is sought’to be made.

. /The corporation resists the tax in whole, asserting

the situs for taxation is not within this State; that —

tal haces da ae an "Sega

ge

despite the fact it listed for taxation in Pawnee .

County, 64 cars during one of the years it is not

estopped to deny taxation in toto. It asserts that the

cars were but temporarily at Cleveland as an incident

‘to its interstate commerce. However, we find that the

absence of the cars from Cleveiand is but an incident

to the cqnduct of its business. The corporation pos-

sesses but one refinery. It is located at Cleveland.

In our opinion the gxable situs is there. Travis v. ~

@ Dicky, 96 Okla. 256,°222 P. 527; State v. Timbrook’s

> Est., 129 S. W. 1068. When this property is away .

. oh from that point it is in transit, but its destination is

always Cleveland, Pawnee County, Oklahoma. So this

property has acquired a: definite situs which takes it

out of ‘the general rule that personal property has its

taxable situs at the domicile of the owner. Gulf Ref.

Co. v. Tillinghast, 94 So. 418, 26 R. C. L. 273. Within

the terms of the statute these cars constitute “prop-

erty within this State’. They are merely temporarily

absent at times from the Cleveland refinery, and then

in transit for thé delivery of products at various

‘points. The entire number of tank cars are taxable = -

in Pawnee County. Williamson v. Prairie Cattle Co.,.

'. § Okla. 497. |

The judgments. of the County Court are affirmed.

There is no-law authorizing a tax based upon an

ty one asa oi of cars present on a given day at

any one taxable point, and there was no application of

that principle b dministrative officers. |

The judgment of the DistricfN’ourt is erroneous as

a matter of law. It is reversed-with directions to ren-

der judgment directing a listing for taxation of the

_———\entire_number of tank cars that have their base for

operations within Pawnee County -for- ‘the“years—in-__

. volved. ,

There is another case herewith presented and con-

sidered on oral argument.:- It comes from Osage

13

County and is styled and numbered, In the Matter of

Assessment of Omitted Property of Johnson Oil Refg.

Co., 23,334. Therein Osage County is claiming the

-gight to collect taxes upon 50 of the cars already con-\

sidered. The judgment therein was based upon an

“average number theory’’ and predicated upon the

presence of that number of these cars upon the rail- .

w

_

way siding in possession of the railroad, subject to.

-eall from the refinery at Cleveland. ‘In our opinion

- these cars did not have a permanent. abiding place

within Osage County and were not subject to taxation

_ elsewhere than in Pawnee County.”

The: judgment in that cause is reversed with direc-

tions to dismiss the action.

_ Clark, C. J., Herner, Cullison, Swindall, MeNeill,

Kornegay, JJ. concur. .

Lester, C. J., Andrews, J., absent. ¢ - oat

Swindall, J., on rehearing, not here attached, not yet

‘officially reported, but reported in 19 Pacific, 2d Series,

page 168. :

De aR IY

This opinion, together with dissenting opinion of .