Blackstone regarded the principle of law as well settled that the crown is not bound by a statute, the words of which tend to restrain or diminish any of his rights or interests unless he be specifically named therein. 1 Blk. Com. 262. Like principle applies in favor of the states, in the United States. End. Inter. Stat. § 161. In our own reports, Justice Emery says: be within or without the territory of the mu- | pipes, fixtures, hydrants, conduits, gatehousnicipality by which it is owned. Camden v.es, pumping stations, reservoirs and reservoir Camden Vil. Corp., supra; Somerville v. dams, located beyond their limits, used in Waltham, supra; Wayland v. County Com-supplying water, power, or light, devolved on m'rs, 4 Gray (Mass.) 500; Worcester County the assessors in Whiting the doing of that v. Mayor of Worcester, supra; City of Roch- which they did. Laws of 1911, c. 120. Deester v. Town of Rush, 80 N. Y. 302; Trus- fense goes only to the propriety of the astees v. Trenton, 30 N. J. Eq. 667; New Castle sessments; regularity otherwise being conCommon. v. Megginson, 1 Boyce (Del.) 361, ceded. 77 Atl. 565, Ann. Cas. 1914A, 1207; West Hartford v. Water Comm'rs, 44 Conn. 360; People v. De Witt, 59 App. Div. 493, 69 N. Y. Supp. 366; People v. Board of Assessors, 111 N. Y. 505, 19 N. E. 90, 2 L. R. A. 148; State v. Gaffney, 34 N. J. Law, 131; Sumner County v. Wellington, 66 Kan. 590, 72 Pac. 216, 60 L. R. A. 850, 97 Am. St. Rep. 396; Com. v. Covington, 128 Ky. 36, 107 S. W. 231, 14 L. R. A. (N. S.) 1214; Schuylkill "The state, the people, the public, is not to County Directors v. North Manheim Direc-be considered as" bound, "unless expressly tors, 42 Pa. 21; Stein v. Mobile, 24 Ala. 591; * however general and comFoster v. Duluth, 120 Minn. 484, 140 N. W. prehensive the language." Goss v. Greenleaf, 129, 48 L. R. A. (N. S.) 707. But it is clearly 98 Me. 436, 57 Atl. 581. within the absolute discretion of the state to subject its own property, and that owned by its political subdivisions, by its arms and held for a public by its instrumentalities, to the tax laws, in purpose, it shall be exempt from taxation in common with other property. Cooley on Tax- the absence of any express statutory provision ation, 263; Trustees v. Trenton, supra; Way- to the contrary." Milford Water Co. v. Hopland v. County Comm'rs, supra; Foster v. | kinton, 192 Mass. 491, 78 N. E. 451. Duluth, supra. The right of the state to tax is always presumed. The case in hand, as set out in facts agreed, is this: Lubec, a Washington county town, is empowered to furnish water and light for public and private consumption. It has been so providing water since about 1901. The lighting dates more recently. P. & S. L. 1901, c. 489; P. & S. L. 1919. c. 47. In the town of Whiting, approximately 12 miles away, is certain land with a waterfall upon it. There and thereabouts are a dam, a penstock, and buildings, machinery, and other estate, adapted and used for generating electricity. Transmission lines run thence to and throughout Lubec, where the current traversing them makes public and private lighting conveniently available. Besides, it affords motive power for the waterpumping station, superseding steam. The development in Whiting has been by Lubec, be ginning around April 1, 1920, when it entered into possession of an old mill and its privilege, as a nucleus of the present plant. At first, occupancy was under a contract of leasehold and for purchase. In the next year, Lubec bought the fee of this and contiguous real estate. In 1920, and again in 1921, the Lubec property intramarginal Whiting was taxed in the latter town. These actions are for the enforcement of collection. Plaintiff's insistence is that the Legislature, by restricting nontaxability of the property of public municipal corporations to (1) that located within their respective territories named, In Massachusetts: "When land is Chancellor Kent: to be construed as embracing the sovereign "Statutes limiting rights and interests are not power of government unless the same be expressly named therein, or intended by necessary implication." 1 Kent (13th Ed.) 460. Courts elsewhere thus state the proposition, in essence: Where the Legislature has made express provision for the exemption of certain classes of public property, the inference is clear that it did not intend that other classes should be exempt. Gate City Guards v. Atlanta, 113 Ga. 883, 39 S. E. 391, 54 L. R. A. 806; Sanitary Dist. v. Martin, 173 Ill. 243, 50 N. E. 201, 64 Am. St. Rep. 110. Under a statute providing that the property of a municipal corporation should be tax free, except the portion not owned within the corporation limits, it was held in New York that real estate owned by a city, but located in another place, and used as a necessary adjunct to its waterworks system, was subject to taxation. City of Rochester v. Coe, 25 App. Div. 300, 49 N. Y. Supp. 502. This decision is affirmed without opinion in 157 N. Y. 678, 51 N. E. 1093, the appellate court saying, in an earlier case in the same volume, that such part of the waterworks system of a municipal corporation as is outside of the corporate limits is subjected to taxation where located. City of Amsterdam v. Hess, 157 N. Y. 42, 51 N. E. 410. A general tax law in that state so subjected it. (115 A.) [4] It is sound principle that, in the in-, tention. In the main it works well. Being terpretation of public statutes, the state and a good rule it will work both ways. When its political subdivisions shall be regarded as it would be destructive of legislative intent, excluded unless included by positive legisla- then the reason for using it ceases. Reasontion. Dillon, Mun. Corp. § 1396, and cases ing and judgment, not the mere bald literalcited. The distinction in the cases is not ness of statutory phrasing, must guide and more marked than is that between denotation control research for a judicious legislative and connotation. But the 1911 statute, design. though applicable to the situation in hand, is not all-inclusive. Using the word, "exemption" for rhetorical ease, rather than in strict accuracy—for “exemption" presupposes a liability to taxation, whereas public property is free therefrom till the Legislature speaks-yet exemption to some extent is still attendant in cases like that here. [7, 8] The Legislature has spoken in words not shaded by a meticulous precision. Its language, though at a first reading it be a trifle indistinct, does not leave meaning unascertainable. Free to act, as the public interest seemed to require, the Legislature limited tax exemption on the part of municipal corporations to property within their corporate limits. Then it broadened exemption, by defining what one municipal corporation might own in another, tax free, "Where a municipality holds property not intention is plain. The "pipes, fixtures, hyjoining its waterworks system. To this point for governmental purposes, but for the mere convenience of its people, or to supply some drants, conduits, gatehouses, pumping staneed such as water or light which is commonly tions, reservoirs, and dams used only for supplied by a private corporation, the pre- reservoir purposes, of public municipal corposumption of an intention to exclude such prop-rations engaged in supplying water" shall not erty from taxation would be very slight." Taxation is the general rule, urges the plaintiff. And from Judge Cooley's work on the subject counsel quotes: be subjected to tax. What else? The same accessories of power and light systems. The descriptive words are not now as appropriate. The act, as originally drawn as a bill and presented to the Legislature, may have em A [5] Hence a rule of strict construction is invoked. But the recital is stopped too short. Taxation is the general rule as applied to private property; is the full text of the max-braced water systems only; "power and im. Tax laws, to speak in a general way, are understood and intended to apply to private, not to public, property. End. Inter. Stat. § 163. The great text-book, whose page was sought to buttress argument, is always, in matters of this import, somewhat in the nature of an opinion of a court of last resort. From where counsel paused in quotation, it immediately continues on: "Such property is deemed, as is said in one case, to be held by the corporation in its social or commercial capacity as a private corporation, and for its own profit, but this unless confined to special assessments, would seem to be limiting the implied exemption unreasonably, and certainly more than other cases limit it." Cooley on Taxation, 267, citing, among others, the case of Camden v. Camden Vil. Corp., supra. [6] Even the rule of strict construction will not be so closely followed as to make unreasonableness. Often has it been stated, in effect, that the intention of the Legislature is the law. Novelty may have gone from this expression, but cogency is with it yet. Though the language of the law is inartificial, nevertheless the real purpose of the Legislature, if that purpose be discernible from its statute, will prevail over the literal import of the words employed. There is nothing hallowed about the rule of strict construction; there should be nothing wrongful. Nor is it purely mechanical. It is a very practical rule. Its oneness of aim is to effectuate, never to thwart, legislative in light" may have come in by way of amend- Port So too are telephone posts and insulators in a public highway, Readfield Tel. Co. v. Cyr, 95 Me. 287, 49 Atl. 1047; and conduits, Portland v. New England Tel. Co., 103 Me. 240, 68 Atl. 1040; and an electric light dynamo with appurtenant machinery installed by an electric light company, Gunderson v. Swarthout, 104 Wis. 186, 80 N. W. 465, 76 Am. St. Rep. 860. Strickland v. Parker, 54 Me. 263. [9] The real estate acquired by Lubec outside its territorial limits is taxable; but, in appraising the property, for the purpose of assessing a tax, the enumerated items in the statute, from pipes to reservoir dams, both inclusive, should not be regarded as constituent portions, were the system merely a waterworks. In the case of the light station, the "fixtures, conduits, gatehouses, reservoirs, (121 Me. 128) MEXICAN PETROLEUM CORPORATION v. 1922.) Feb. 11, and dams used only for reservoir purposes,” 1. Commerce 41(1), 77 Foreign tank er. A tank steamer and oil which is being brought from a foreign country, together, constitute the "original package," and the oil ceases to be an import and is taxable by the state after it has been placed in tanks on shore, where it is to remain until sold and shipped to purchasers, notwithstanding Const. U. S. art. 1, § 10, prohibiting state from levying imposts or duties on imports or exports. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Original Package.] 2. Commerce 41(1) "Original package" An "original package," as applied to interstate and international commerce, is a package, bundle, or aggregation of goods, put up in whatever form, covering, or receptacle for transportation, and as a unit transported from one state or nation to another, and is the identical package delivered by the consignor to the carrier at the initial point of shipment. [10, 11] On April 1, 1920, the defendant town was in possession of the premises as a tenant. For purposes of taxation a person in possession may be considered as the ownR. S. c. 10, § 9. The tax was laid, in the sum of $80, on the Crane mill and water power privilege. Water power as such is not taxable; land with a mill privilege on it is. Union Water Power Co. v. Auburn, 90 Me. 60, 37 Atl. 331, 37 L. R. A. 651, 60 Am. St. Rep. 240; Saco Water Power Co. v. Buxton, 98 Me. 295, 56 Atl. 914; Penobscot Chemical Fibre Co. v. Bradley, 99 Me. 263, 59 Atl. 83. But sufficiency of the assessment is granted. The "mill and privilege" then were the beginning of a lighting station, with neither of these parts exempted from taxation. A year later the defendant was still in possession, as absolute owner of the original and other property, as a completed station. Under the agreed facts, the lands and privilege, and the milldam thereon, are tax-ley, all of Portland, for defendant. able; the amount of the tax is $112.50. The powerhouse is taxable; the tax being $90. The penstock, a huge pipe through which water runs from the dam to the powerhouse, is a fixture. The generator and other machinery, and as well the transmission lines, are fixtures. Fixtures are exempted. Appeal from Supreme Judicial Court, Cumberland County, at Law. The City of South Portland assessed taxes against the Mexican Petroleum Corporation. From a decision of the assessors refusing to ahate the taxes, the latter appeals. Judgment for the City. As affecting the question of costs, the bringing of these actions was authorized (R. S. c. 11, § 61), and demand for payment, made before the commencement of each, was refused (Id.). Argued before CORNISH, C. J., and SPEAR, HANSON, DUNN, MORRILL, and DEASY, JJ. Verrill, Hale, Booth & Ives, of Portland, for petitioner. Stephen W. Hughes and Hinckley & Hinck CORNISH, C. J. This is an appeal from the decision of the assessors of the defendant city refusing to abate the taxes assessed against the plaintiff for the year 1920, and comes before the law court on an agreed statement of facts. The following excerpts from that statement give all that is material for the decision of the case, viz.: "On the 1st day of April, A. D. 1920, the day on which the petitioner was assessed for the tax appealed from, the petitioner was a corporation duly organized under the laws of the state of Maine; its principal office, as provided in its charter, was located in the city of Portland, county of Cumberland and state of Maine, where the clerk's records and other corporate records were kept; its principal office for administrative purposes was in the (115 A.) legal as in violation of article 1, § 10, cl. 2, of the federal Constitution, which is as follows: "No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws." The levying of a tax upon imports by local city of Los Angeles, in the state of California; it had branch offices in various parts of the United States; on said 1st day of April, 1920, it had a branch office in the city of South Portland under the charge of a local superintendent; said branch office was located on land in the city of South Portland owned by said petitioner, and there were also located on said land four tanks used for the purpose of storing oil awaiting its sale and delivery. "Petitioner's branch office in said South Port-authorities comes within this inhibition of land is, and at the time of the assessment of the Constitution, so that the discussion of said tax was, engaged solely in the business of the case at bar is resolved into a single point, selling and distributing the oil from said tanks namely, whether on the 1st day of April, to buyers throughout the territory comprising 1920, the oil of the plaintiff company accumuthe northern portion of New England; all lated in these tanks, under the admitted contracts of sale are passed on to the New York office for approval; all of the oil sold facts, must be regarded as still retaining its and delivered by the said petitioner, through its character as an import, and therefore imbranch office in said South Portland, is immune from local taxation, or whether it had ported into the United States of America from lost its character as an import and therethe republic of Mexico in bulk in tank steam- fore, like all other property enjoying the ers; said tank steamers proceed from the port protection of the local government, was subof shipment in Mexico directly to their destina-ject to taxation for its proportional part of tion at petitioner's dock in South Portland without touching at any other port. Upon the the expense thereof. steamers reaching their destination in said South Portland the oil from said steamers is pumped from said tank steamers into the tanks hereinbefore mentioned. No other oil is sold by said petitioner in its branch office in South Portland, except such as has previously been pumped from its steamers as hereinbefore described. At the time of pumping said oil from the said steamers there is always oil in said tanks, so that the oil from any steamer is mixed with oil that has previously been imported in the same manner and pumped into said tanks from other steamers; several tank steamers thus loaded with oil from Mexico are received at South Portland by said petitioner each year and their cargoes pumped into said tanks. For the purpose of sale suction lines are laid from said tanks to the boiler houses whence the oil is pumped through pipes to tank car loading racks, motor truck loading racks, or the bunker line on the petitioner's wharf. The oil loaded on said tank cars is sold and delivered in various parts of the territory comprising Northern New England. The ou loaded into the tank motor trucks is sold and delivered in Portland and immediate vicinity. Some oil from said tanks is drawn out and used by said branch office for its private purposes, namely, to generate heat and power. Chief Justice Marshall, in the leading case of Brown v. Maryland (1827) 12 Wheat. 419, 6 L. Ed. 678, discussed with characteristic fullness, clearness, and power the principles underlying this question, and blazed a way from which the courts have not strayed for the well-nigh completed century since that decision was announced. When goods are imported into the United States from a foreign country for sale and use here, there must be some point of time at which they lose their character as an import and therefore cease to possess rights superior to the general mass of property in the country. What that point is, just where the line of separation runs, depends upon the peculiar facts of each particular case and the manner in which the importer deals with the goods imported. In some instances the line may be sharply defined; in others it may be somewhat vague and indefinite. The great Chief Justice calls attention to this in his opinion in Brown v. Maryland, when he says: "The distinction exists, and must be marked as the cases arise. Until they do arise, it might be premature to state any rule as being universal in its application." But he continues: "The parties agree to limit the issue in this case to the question as to whether on the above agreed statement of facts the petitioner could be legally assessed for the oil in said tanks. If the court finds that the petitioner "It is sufficient for the present to say, gencould be legally taxed under the above state-erally, that when the importer has so acted ment of facts, judgment shall be rendered in upon the thing imported, that it has become favor of the city of South Portland for the sum incorporated and mixed up with the mass of of $1,399.20, with interest thereon from the property in the country, it has, perhaps, lost 1st day of August, 1920, and costs. If the its distinctive character as an import, and has court finds that the city of South Portland did become subject to the taxing power of the not legally assess the tax on said oil in said state; but while remaining the property of the tanks, judgment shall be rendered for the pe-importer, in his warehouse, in the original form titioner, and the court may make such order relating to the payment of costs as justice may require." [1] The plaintiff's contention is that the tax upon the oil in the four tanks on the dock is a tax upon imports, and therefore il or package in which it was imported, a tax upon it is too plainly a duty on imports, to escape the prohibition in the Constitution." The slight hesitation in announcing this rule as indicated by the word "perhaps" has entirely disappeared in subsequent decisions, and the general rule there announced has defined in somewhat different language, but often been reiterated in substantially the for the most part with a single inherent same essence, though in varying form. Twen- meaning. A comprehensive and satisfactory ty years after the decision in Brown v. Mary- definition is this: land, Chief Justice Taney approved of the rule there laid down and restated it thus: "Goods imported, while they remain in the hands of the importer, in the form and shape in which they were brought into the country can in no just sense be regarded as a part of that mass of property in the state usually taxed for the support of the state government." License Cases (1847) 5 How. at pages 573, 576 (12 L. Ed. 256). "An original package, as applied to interstate and international commerce, is a package, bundle, or aggregation of goods, put up in whatever form, covering, or receptacle for transportation, and as a unit transported from one state or nation to another. It is the identical package delivered by the consignor to the carrier at the initial point of shipment in which it was shipped." 12 C. J. p. 31. The term "package" in such instances comThe term "original package" later came in-prises two things: First, a receptacle of to use, not as a statutory or constitutional whatever form or character, and second, the term, but as a judicial expression, applicable contents thereof. Both together make up in this connection. In Low v. Austin (1872) the package. The receptacle may be, for in13 Wall. 29, 20 L. Ed. 517, after considering stance, a box, bale, case, barrel, hogshead, or the opinion in Brown v. Maryland and the even a tank as used on a tank car, or a tank License Cases, the court said: steamer; the contents may be, for instance, "The goods imported do not lose their char-in packages or bottles, or in bulk. They acter as imports, and become incorporated into the mass of property of the state, until they have passed from the control of the importer or been broken up by him from their original cases." may be solid or liquid. Here the receptacle was the tank steamer and the content was the oil in bulk. The oil could not be transported from Mexico to Maine without some sort of a receptacle, and the tank steamer The original package idea was more fully was that receptacle. The importer has the developed in May v. New Orleans (1900) 178 right to decide for himself the form and reU. S. 496, 20 Sup. Ct. 976, 44 L. Ed. 1165. In ceptacle in which he shall import his propthat case the plaintiff was an importer of erty. Guckenheimer v. Sellers (C. C.) 81 Fed. linen from Europe. The goods came in boxes 997. He may use his own container or one or cases, and in each box or case were furnished by the carrier. In re Harmon (C. many packages, each of which was separately C.) 43 Fed. 372. When the goods have been marked and wrapped. The importer sold each placed inside the container, then we have a package separately. The question was wheth- completed package, and it is that identical er each box or case was an original pack-package, that unit, that entity received, age or each separate package in the boxes and cases. The court held that the boxes or cases were to be regarded as the original packages, and when such receptacles reached their destination in this country for trade or sale and were opened for the purpose of using or exposing for sale the separate packages, the goods thereby lost their distinctive character as imports, and each parcel or bundle became a part of the general mass of property in the state and as such became subject to local taxation. It may be regarded as settled, then, that imported goods lose their character as imports when either of two changes has taken place: First, when they have passed from the control of the importer as by sale, or, second, when they have been separated from the original receptacle in which they were shipped. In the case at bar there is no claim that the oil had passed from the control of the importer. The plaintiff company still owned the property. The other question then remains whether the imported commodity had been separated from its receptacle; in other words, whether the original package had been broken. transported, and delivered by the carrier, which constitutes the original package, and that entity as an article of commerce is protected by the Constitution until sale or breakage of the package. In our opinion therefore, where the oil was stored and shipped in the steamer tank, the oil and the tank together may be considered as the original package. Had there been several movable containers, as casks or barrels, there would be no contention on this point. If the importer sees fit to ship the oil in one large container instead of several small ones, the principle remains unchanged. Oil in tank cars has been treated by the Supreme Court of the United States as in the original packages, when considering the provisions of the Interstate Commerce Act (Askren v. Continental Oil Co., 252 U. S. 444, 40 Sup. Ct. 355, 64 L. Ed. 654), and by parity of reasoning oil in tank steamers may be similarly regarded. The next consideration logically is whether that original package has been broken, within the purview of the established rule, so that the contents have become a part of the general mass of property. |