                                                                              136


/.
           0wlcE    OF   THE    ATTORNEY     GENERAL   0F   TEXAS
  . .,
 ;. _~                              AUSTIN   , u
                           ‘I




  : Hr. c. J. iYllde
    Couuty Auditor
    Corpus Christi,  TeAa&
~‘            ..
    Dear Mr. Kilde:




 ;
$ ./‘,.
..~ .         You requeet’ the 0
$: .letter of .September 22, 194
:_~ quote your letter  as follow
                                                 ou ~advise us a8
         to the status                            taxes   for truck-
         ing companlee                              operating in
         Nueaeea Couqt                            uation wherein.      .’
                                                  ny; which is
                                                  d Company, op-
                                           -Nueces County exoluslvely,
                                          ed .by the railroad   com-
                                          lso pioking up deliveries
                                          nea of %Nueces County.
                                          red .for personal proper-ty    ‘.
                                          alorem tax in Nueaes
                              tuation is the. various automobilas
                           beings operated by the Central Power
                           . ,’In thie case, there are a number
                           or vehicles’ throughout ‘several COWL-
                                   Are.we to coneider only the
                          ng in Nueoes County,,or,       shall we
         consider all vehicles    as being. aseeasab&e in Nueoee
         Comty?   Another iriatanoe, ia the Transport Company
         of Texa8 whioh owns and operates a number of gasoline
         trucks oarryiny, gasoline   to ,mny of.the Army and.Navy
         Camps throughout the oouhty, said oompauy being do--
         mioiled in Hueoes County.~"




                                                       .*
           : Replying to our request for additional        information,
  you stated in your letter    of October 14, 1943:
. _-.
             “Referring   to your letter    of September 30th,
       Re: Opinion Request No. O-5632, please be advised
       that the Transport Company of Texas is domioiled in
       Muecea Ccuuty; the Southern Pacifio        Transport Com-
       psuy, X aaaune+,i’a donioiled     in Houston as it ia a
       subsidiary of the Southern Pacifio        Railroad Couhty,~1
       ~however, thetrucks    used by this conoern are houaed
       and used entirely,    to the beat of ‘my knowledge, in
       Nuecea Couuty naking dellverlea       of freight   shipped
      .over the Southern Paoifio     Lines.    I, also, ,believe
       that all thr6e oompeniea are oorporetIona.*
             We deem it desirable   to treat these:corporatlons
!C:,separately.  ?la, therefore, take ‘up the Southeyii Pacific     Ttiana-
F<,port Cotipany f irat t


..
                  SOUT%RNPACIFIC TRAKSPORT
                                         COXPAhY
c$T,n
;;r;:
p: ~.
F#.i      ‘.    The records in the office       of the Secretary of State
${. reveal that the Southern Paolfio        Transport Oompahy is a Texas
?p odr ration,      donioiled    in Harris Couuty, for the purpose stated
%.;.ih r ta: Charter:    “to tranaport goods‘ wares and nerohandiae,
5% or any.~vsluable thing.”        It is apparent that the Southern Pa-
~‘clfio     Transport Compaxiy la riot a railroad      conpanyi even though-
$ it my be affiliated          with the southern Paoifio Railroad Company,
;;; henoe it la of .no aIdi but would only serve to oonfuae if we,
F.,, ahould att,empt to apply the Conat1tutional         and Statutory pro-
&-.viaiona ap lloable        to the organization,    operation,~ and taxa-
;, tion,of ra Plroad oornpanlea in an itfrortto arrive at a oorreot
:.- answer to your queatiofii       We shall revert to this later merely
:t- for the purpose of distinguishing         the railroad   oases from the
I:::~,
;‘I  truok  and bus   oases,
                It is observed that your opinion request aasmos as
     a fact, add we must as of neoesalty   asauae the aamc state of
     Saota that the Southern Paoifio  Transport Company *operates
: ~.~a truok or truoka, in Mecca Couuty excluaivele      receiving
     the material shipped by the railroad    company, &king deliveries
     and also picking up deliveries  for a transfer within the oon-
     fines of 14uec;ls County.” This addtted    state of fects   fixes
 ,, a business situs as to the truoks inquired obout in Kueoea
                                .     ,




County, as distinguished   from the home office        or domicile
of the corporation   in Harris County.
             As an abstract   proposition of law, personal
 property is taxable at the domicile of the owner, but where
 the owner by h,ia own voluntary tact fixes a definite     and
 permanent aitus of personal property owned by him for
 business purposes in another oounty other than his residence
 or domicile,   and we think that the 3outhern Pacifio     Transport
‘Company has done that in this instance,     thus aubjeotlng   said
 trucks to ad valorem taxes by Nueoea County.      This rule is
 vory well stated in tha case of John Rancook ~~utual Life
 Inauranoe Co. v. Davis, (writ? of error denied) 162 S. W. (2d)
 433, in the following    language:
            ‘We overrule    appellants osaignmenta of error
      numbered 1, 8, 30, 31, 32, 37, 38 and 39, bottomed on
      the propoa,ition    that notes and other personal property
      are legally    taxable only at the domicile of the owner.
      This is a correot statement of an abstract proposition
      of law; but we fail to see how the same 1s here involved,
      The notes have never been taxed in the State of Texas,
      and no attempt is shown to have been made to tax the
      3-9      The owner of the notes, at its ontioh      oould
      establish   a situs for taxation of the notes     n Waoo.
      MoLennen County, in whioh event the makers of the notes,
      by reason of the above quoted provisions      of said deeds
      of trust, would be obligeteU to pay the’taxea       assessed
      against the same.”
            The Constitution   of Texas,    Article   8, Seotlon     11
provides   as follows:
            “All property, whether oyned by pereona or oorpora-
      tions, shall be assessed for taxation,  and the taxes paid
      in the oountica where situated.  . ,”
          .Artiole 7153 of Vernon’s       Annotated Civil   Statutes
of 1925 provides as follows:
            “All property,  real and personal, except auoh es
      is required to be listed   and assessed otherwise, shall
      be listed  and assessed in the oounty where it is situated;
     and all persons1 property,   subject to taxation and
     temporarily removed from tho State or oounty, shall
     be listed  and assessed in the oounty of the residenoe
     of the owner theroof,   or in the county whero the
     principal  office  of suoh owner is &ltuated.”
            The truoks referred   to in your letter   are obviously
tangible   personal property.
          We think the rule  has been well settled   in this
State ns to the oounty In which tangible personal propertjr
is subject to tsxntion.   It is stated as olearly   in our
opinion No. G-3702, from whfoh we quotd,as follows,   as we
shall be able to restate it:
           “The rule or law appllaable  in Texas is, therefore,
     thab tangible personal property is taxable in the oounty
     of Bhe domialle of the owder Unless the property has
     acquired a permanent fixed situs of Its own separate
     and apart from that of the,aounty of the owner’s domi-
     alle.   Mere temporary absenoe from the aounty of the
     owner’s aomlolle does not give tangible personal property
     a taxable situs In another oounty end remove it from
     taxation in suah county of the owner’p domicile.    : . .
            *However, in e aase where taxglble     personal property
      does aoquire a permanent sltus in a aountg other than
      the oounty of the owner’s dcimloile in relation      to the
      tar year in question such property ‘is taxable la the
      oounty where %he sane is actually   looated.     . . .”

          The dlatino.tlon we have made is reoognlzed in the
6aae of Great Southern Life Insuranoe Co. v. City of Austin,
 43 S. W. 778, (Supreme Court of Texa6, opinion by Chleif
 ustloe Cureton) from which we quote as followsr

            “It Is true that the aotual situs   of oertaln classes
      of visible   and twible   personal property,   as well as
      intangible   property having similar oharacteristlas,   as,
      for example, money, State aa mun~oip+ bonds, airaulating
      bank notes, and shares of stock in private corporations,
      may have a situs for taxation where they are permanently
 .    m       separate and apart from the domloile of the owner. *
                                          ’    .




    .&ir. C. J. I'Xlae,   page 5


                 Vie do not deeri it neaessary to lengthen thla
      opinion by tho citation     of auuulatlve authorities,    and we
      may well let It rest upon the ease of Great Southern Ll.fe
      Insurance Company v. City of Austin, supra, by that enlnent
      jurist,  the late Chief Juatlae    Cureton, but we note briefly
     ~a few other deoisions.      In the case of City of Galveston
      v. J. hi. Guffey  Petroleum   Company, (writ of errors refused)
      113 8. W. 585, from whioh we quote as follows:
                  "The Legislature   may, in oertaln lnstanoes,       give
           to property an artlflolal      situs for the purposes of
           taxation;   but when the property is physloal in oharaater,
           or of a nature that oan aaqulre an aotual situs,           it must
           under hour Constitution    be taxed in the oounty where,
           aotually   situated or located.       The finding of the court
           Is to the effect     that these vessels so taxed have an
           actual sltus at Port Arthur, in the oounty ofmson,
           and nre not and have never been wlth.ln waters looated
           wlthlu the territorial     jurlsdlation     of the oity,of
           Galveston.
                ."That vessels may aoqulre an aotual sltus is a
           proposition  too well settled  to be questioned, .and
           that the place of enrollment and registration    Is not
           oontrolllng,  if the aotual situs 1s elsewhere.    . . ~.W
           (3mphasl.s added)
                   Uooley on Taxation, Vol. ~2, 4th edition,         page 975,
Fli'~~..
  ;    appears   the  following:
                    "The situa     of tangfble personal&W perty, for
             purposes of taxation may be where the oi ner is Uomlolled
             but is not neoessarily        a.    Unlike IntangIble   personal
             property,     it may aoqulra:a     taxablesltua    In the state
             other than the one where the owner is &omIailed,            merely
             beoause   It    Is located there.     Its taxable lsitus is
             where It Is more or less permanently looated.           regamess
             of the domiolle of the owner.? (Emphasis added-
                        -
                   !7e must not be misled by the aonfusloqwhloh           may
       arise by the loose language used in some of the dealsions
       with respect to the rule that prevails            as to the taxation of
       rolling stook of railroads         in an effort    to apply an analogy
       in aonslderlng      the taxability     of truoks and buses ovned and
Mr. C. J. zilae,   page 6


operated by corporations    or   individuals,    This distinction
is apparent, and made so by      Judge Leddy in the oase of Gulf’
c0+aa0   k s, F. RY. CO; v!      Clty~ of Dallas, 3.6 s.‘;!. (al)
292, (Coraalsslonof. Appeals 1   in the following   language, from
which we quote:
            “The Legislature   or1 inally (Aot Aug. 21 1876
     (Laws 1879, o. 157,, 0 l.9)? subjected rolling      &oak of
     railway aompanias to taxation by aities      and towns by
     the apportionment method, and subsequently repealed
     the same in the adoption of the Revised Statutes of
     1879, and later,     by the passage of the Aot of Alaroh 28,
     1885 (Laws 1885, a. 631, expressly exempted railway
     companies from the necessity      of making rendition   of its
     rolling   stock to Incorporated    oitles and towns,    We
     think suah aatlon negatives the grant of authority        to
     the alty. of Dallas whloh is alaimed to exist In this
     case to tax the rolling     stock of a.rallway aompanp,
     even thou& the same was situatad within the aity on
     Sanuary 1st. and so remained for a definite       tine.
            “The Legislature      no doubt concluded that it would
     not be tho exercise       of a sound poliay to subjeat rolling
     stook of a railway company to taxation by oltles and,
     towns. along their lines because of the oonfusion whioh
     would result from efforts         of different   mun1alpalltles
     to determine the sibus ,of suoh property due to its
     transitory    nature.     While switch engines may have more
     permanenoy in thelr~ looatlon        than other rolling    stock,
     yet all locomotives       belonging   to a railway aompany
     are of neoessitg      a part of its rolling      stook, the
     looation   of whloh Is subjeot to ,be changed from time
     to time. The aitus of so muak of rolling             aboak belonging
     to railway companies was lndefl~nlte ,and unoertain that
     the Legislaturewas justified          in olaselng It all as a
     unit for purposes of taxation,           It unquestionably    had
     the authority     to determine the situ5 of rolling        stook
     for purposes of municipal taxation.            The faot that
     isolated   rolling    stook might in some instonoee appear
     to have a fixed location         Is not sufflalent    to Invalidate
     the alasslfioatlon       thus made.
           *In the absenoe of .a statute defining the taxable
     situs of this property otherwisegY it was only taxable
     at the domlolle of the railway oompahy.” (Emphasis added)
.%, :     Mr. C. J. Wilde, page 7
  .
 _i
 ii
!.:$T,’                Briefly,     Judge Leddy haa said:
1;::
  ,:
2~  ~.                 “The Legislature        unqueetionably had the authority
\.~.
Ltr            to determine the altus of rolling              atook Por purposes
‘1,            of muniolpal taxation,           but having by legislative         aotion
L!.            exoepted railroad         oompaniee frcm rendering any part of
i:*:I”         their rolling        atook to lnoorporated       cities    or towns
&-
              .through whloh their lines may extend, thus preoludlng
;&c            the olty of Dallas or any other munioipallty                  from taxing
 >Y,,’         the   rolling     stook   of  railroads.     This   acxoeptlon    is
L,~‘),.~_
       ;
 I::
 -.-,,.        manliest     by   Artlole    7168,   Revised  Civil    Statutes,     whloh
               provides:
::.-
  ‘I
z.7
 i:‘+:
    ~7                 WIAIL personal property of whatsoover kind or
.I:‘&          oharaotsr,       exoept the rollinS       atook belonging to the
$,.,           company or in their possession             in eaoh respaotlve        oounty,
&i;~           listing     and   desorlblng     the  said  personal    property     in the
               same manner as is no# required of oltlzens                 of this State.‘*
‘g&:,
@                 Aocordingly,    we hold under the Taots submitted by
  ?.~~
J*,~   you that the  truoks    of the Southern Paolflo Transport Company
       have aoqulrad a business situe     in Nueoes County, thus subjeot-
       ing them to ad viLl.orem taxes by said oounty.

                                    Transport    Company of Texas
                       According to the reoords of the Railroad Commission,
           the above named oompany 1s lndlvldually     owned and 1s domlolled
           in Nueoes County.     The general oommon law rulsethat    the sltus
           for taxation of personal property Is the domiolle or the owner
   ,‘:... ,applles to individuals    as well as oorporatlons,   unless a busl-
           ness ,situs has been aoqulred elsewhere,    and slnoe under the
           facts submitted the truoks of the Transport Company of’ Texas
           have not aoqulred a business situs outside of Nueoes County,
           the domiolle of the owner we aooordingly       hold that, iis::totthe
           truoks of the Transport C&npany ot Texas, they are taxable in
           Nueoes County,

,&’
y@; ,yT
Mr. C. J. Wilde,    page 8


                       Central    Power and Llp,ht Conpane
            Records of the Secretary of State reveal that the
 above named ooapany is a Massaohusetts oorporation,    with its
 prlnolpal office  in Boston, Masaaohusetts,  operntlng in
 Texas under a permit.   Its applloatlon  Sor permission to
 do business in this State, filed in 1936, states:     “Buslne ss
~ln the State of Texas is to be transacted at Corpus Christi,,
 Nueoes County, Texas, and all other oountlea in Texas.      The
 name of the manager or person in oharge of said Texas business
 or agenoy will be %r. James 0. Kennedy, Corpus Christl,     Texas,
 714 Nixon Building. 1V
            Article 8, Seotlon 11 of the Texas Constitution
provides   as quoted above.   Artiole 7153,, R. C. S. prbvldes:
            “All proporty;   real and personal,  exoept suoh as is
     required to b.e listed    and assessed otherwise,  shell be
     listed and assessed in the oounty where it la situated;
     and all personal propeirty, subjeot to taxation end ten-
  .’ porarlly    removed rrom the State or oounty, ehall be
     listed and assessed in the county of the residence of
     the owner thereof,     or in the oounty where the prinoipal
     offloe   of such owner is e&tuated.*
           In Guaranty Life      Insuranoe    Company v. City of Austin,
190 S. w. 189,Chlef Justloe       Phillips;    speaking for the Supreme
Court, said:
            “This artiole     olearly  oontemplates that any property
     classified     as personal property by artlole          7505,and having
     a oonorete form may aoquire a sltus distinct              from the
     plaoe of the owner’s residenoen                provides that personal
     property *temporarily removed from the state or oounty’
     shall be taxed in the oounty of the owner’s residenoe.
     This is a provision with reapeot only to personalI{r;c+rty
     Ftemporarily removed from the county or state.’
     no applleation      to personal property whose removal is not
     temporary, but whioh has aoquired a sltus in a different
     oounty.     If the removal from the oom-f               the owner*s
     reaidenoe be only temporary,         it   could   not  under  the artlole
     acquire a situs      elsewhere;   it   Is  to  be  regarded   as still
     *situatedV-%i?&e        county of the owner’s residenoe and is
     therefore     taxable there.     The artiole      makes it plain,
    a-* c. IT. ‘Zilde,   page 9


       ’ havcve,r, that if the removal be not of a temporary
         oharacter snd the property has aoqulred a situs in
         a different   county, it is taxable in suoh ay,
         unless within the exoeption of the article     and
         therefore   expressly made taxable elsewhere.”
                The faot that person~al property of a foreign
    corporotlon   physicaLly located in this State is aubjeot
    to taxation in this State appears to be well settled.
    Texas Land and Cattle Co. v. City of Fort-Worth, 73 5. Yi.
    (Zd) 860, error refused;    Jesse French Piano and Organ Co.
    ~‘v.~Ci;; or Dallas, 61 S. ‘f!. 942, error refused; 40 Tex.
        .    .
                From the foregoing    it is apparent that under the
    weight of authority,    personal tangible property of a foreign
    oorporaflon   doing business in this State Is taxable’where
    the property is aotually     physically   looated ~a& used in- the
    business of the oor$osation,      and where it has ItsTexas
    olfloe   and plaoe of business if its removal therefrombe
    only of a temporary nature.       Therefore,   if the trucks of
    the Central Power and Light Company operate from the garage
    or storage base in aorpus Chrlsti,       Nueoes County,  Texas,
.   upon a temporary basis, fromwhloh        the operations   initiate
    and to whioh they return, in suoh way as not to acquire a
    business situs elsewhere,     said trucks are. aooordlngly      taxable
    in,~ Nueoes County.  However, if any of the’ truoka and automo-
    bilea of this oonoern are kept outside of Nueoes County upon
    a permanent basis, as distinguished       from a temporary,basls,
    they would not be taxable in NueCes Cotity.
                                            Yours very truly
