This was a suit in assumpsit by the petitioner, the Champlain Realty Company, to recover $484.50 and interest from the town of Brattleboro, Vt., being the amount of taxes levied on logs of pulpwood of the petitioner floating in the West river in that town on April 1, 1919, and paid by the petitioner under protest as illegally collected, because the logs were then in transit in interstate commerce to Hinsdale, N. H. The suit [260 U.S. 366, 367] was brought in the county court, and, the defendant having failed to set the cause for jury trial within the time fixed by statute, it was heard by the court, which made findings of fact that under the state practice are conclusive on review by the Supreme Court. The county court gave judgment for the Realty Company. The town took the case on exceptions to the Supreme Court.
The Supreme Court (95 Vt. 216, 113 Atl. 806) summarized the findings of fact by the county court as follows:
On these findings the Supreme Court held that the interstate transit did not begin until the wood left the Brattleboro boom. Everything before that was merely preparations. The floating of the logs from the West river towns to Hinsdale was interrupted, and the interruption, although only long enough to secure safety in the drive, was for the benefit of the owner, and in law postponed the initial step in the interstate transit until the wood was released from the Brattleboro boom. The court, therefore, held the wood taxable at Brattleboro and reversed the county court.
Messrs. Wm. C. Cannon, of New York City, and M. P. Maurice, of Brattleboro, Vt., for petitioner.
Messrs. Arthur P. Carpenter and Ernest W. Gibson, both of Brattleboro, Vt., for respondent.
Mr. Chief JUSTICE TAFT, after stating the case, delivered the opinion of the Court.
The Vermont Supreme Court depended for its conclusions chiefly upon Coe v. Errol, 116 U.S. 517 , 6 Sup. Ct. 475, which is the leading case on this subject. There logs had been cut on Wentworth's Location in New Hampshire during the winter and had been drawn down to Errol in the same state, and placed in Clear stream and on the banks thereof on lands of John Akers and part on land of George C. Demerritt in said town, to be from thence floated down the Androscoggin river to the state of Maine. 116 U.S. 518 , 6 Sup. Ct. 475.
It is not clear how long they had lain there, but certainly for part of one winter season. This court, speaking by Mr. Justice Bradley, sought to fix the time when [260 U.S. 366, 372] such logs, in the course of their being taken from New Hampshire to Maine, ceased to be part of the mass of property of New Hampshire and passed into the immunity from state taxation as things actually in interstate commerce. The learned Justice states the rule to be:
Again, on page 528 of 116 U. S., on page 479 of 6 Sup. Ct. (29 L. Ed. 715), Justice Bradley said:
The question here then is: Where did the interstate shipment begin? When the wood was placed in the waters of the West river in the towns of Jamaica, Stratton, Londonderry and Winhall, or at the boom in Brattleboro? The whole drive was 10,000 cords. Six thousand cords of that, shipped from these towns after the 3d of April, went through directly to Hinsdale, N. H ., without stopping. Certainly that was a continuous passage, and the wood when floating in the West river was as much in interstate commerce as when on the Connecticut. Why was it any more in interstate commerce than that which had been shipped before April 3d from the same towns for the same destination by the same natural carrying agency, to wit, the flowing water of the West and Connecticut rivers? Did the fact that before April 3d the waters of the Connecticut were frozen, or so high as to prevent the logs reaching Hinsdale, requiring a temporary halting at the mouth of the West river, break the real continuity of the interstate journey? We think not. The preparation for the interstate journey had all been completed at the towns on the West river where the wood had been put in the stream. The boom at the mouth of the West river did not constitute an entrepot or depot for the gathering of logs preparatory for the final journey. It was only a safety appliance in the course of the journey. It was a harbor of refuge from danger to a shipment on its way. It was not used by the owner for any beneficial purpose of his own except to facilitate the safe delivery of the wood at Hinsdale on their final journey already begun. The logs were not detained to be classified, measured, counted, [260 U.S. 366, 374] or in any way dealt with by the owner for his benefit, except to save them from destruction in the course of their journey that, but for natural causes, over which he could exercise no control, would have been actually continuous. This was not the case in Coe v. Errol. It is evident from the statement of that case, and Mr. Justice Bradley's language that the logs were partly drawn and partly floated to Errol, and deposited some in the stream and some on the banks, where 'they were to remain until it should be convenient to send them to their destination,' and they were being gathered there for the whole previous winter season. It was an entrepot or depot, as the Justice several times describes it. The mere fact that the owner intended to send them out of the state under such circumstances did not put them into transit in interstate commerce. But here we have the intention put into accomplishment by launching, and manifested by an actually continuous journey of more than half the drive, with a halting of less than half of it in the course of the interstate journey to save it from loss, and only for that purpose.
The case at bar is easily distinguishable from the other cases cited by the Vermont Supreme Court. In Bacon v. Illinois, 227 U.S. 504 , 33 Sup. Ct. 299, Bacon had bought shipments of grain in transitu from Western States to New York in the contract for which the carriers had given the shipper the right to remove it 'for the mere temporary purposes of inspecting, weighing, cleaning, clipping, drying, sacking, grading or mixing, or changing the ownership, consignee or destination.' On arrival of the grain in Chicago, Bacon removed the grain from the cars to his private elevator. This removal was for the purpose of inspecting, weighing, grading, mixing, etc., but not to change its ownership, consignee, or destination. It was held that, whatever his intention, the grain was at rest, within his complete power of disposition, and held for his [260 U.S. 366, 375] own benefit and was taxable. His storing of the grain was not to facilitate interstate shipment of the grain, or save it from the danger of the journey. It was to enable him to treat the grain, so as to enable him more conveniently to dispose of it. He made his warehouse a depot for its preparation for further shipment and sale. He had thus suspended the interstate commerce journey and brought the grain within the taxable jurisdiction of the state.
So, in General Oil Co. v. Crain, 209 U.S. 211 , 28 Sup. Ct. 475, the Oil Company had its principal place of business in Memphis, Tenn., for the manufacture and sale of illuminating oils in interstate commerce. It imported oil from other states and put it into a tank, appropriately marked for distribution in smaller vessels to fill orders for oil already sold in Arkansas, Louisiana, and Mississippi. The court held that the first shipment had ended, that its storage at Memphis for division and distribution to various points was for the business purposes and profit of the company. The court continued:
The tank at Memphis thus became a depot in its oil business for preparing the oil for another interstate journey. So far as it bears upon this case, American Steel and Wire Co. v. Speed, 192 U.S. 500 , 24 Sup. Ct. 365, presented a similar state of facts and ruling.
In Diamond Match Co. v. Ontonagon, 188 U.S. 82 , 23 Sup. Ct. 266, the company cut 180,000,000 feet of timber for the purpose of saving the same from fire, and to protect and preserve it, put it into the Ontonagon river, Mich. It was drawn down to the mouth of the river into the township of Ontonagon, Mich., to the sorting ground and pier jams of the company and there it was taxed. The logs remained there and were [260 U.S. 366, 376] shipped as they were needed to Green Bay, Wis., to the mills of the company. Not more than 40,000,000 feet a season were needed. Palpably the company's sorting grounds and pier jams were a depot for the keeping of the logs for the business purposes of the company, and there was no interstate commerce until the final shipment to Green Bay began.
In the cases of Brown v. Houston, 114 U.S. 622 , 5 Sup. Ct. 1091, and Pittsburg Coal Co. v. Bates, 156 U.S. 577 , 15 Sup. Ct. 415, the coal in barges in the Mississippi river which was the subject of taxation had come to rest in Louisiana, after a trip from Pittsburg, and was being held for sale to any one who might wish to buy.
The interstate commerce clause of the Constitution does not give immunity to movable property from local taxation which is not discriminative unless it is in actual continuous transit in interstate commerce. When it is shipped by a common carrier from one state to another, in the course of such an uninterrupted journey it is clearly immune. The doubt arises when there are interruptions in the journey, and when the property in its transportation is under the complete control of the owner during the passage. If the interruptions are only to promote the safe or convenient transit, then the continuity of the interstate trip is not broken. State v. Engle, Receiver, 34 N. J. Law, 425, 435; State v. Carrigan, 39 N. J. Law, 36. This was the case in Kelley v. Rhoads, 188 U.S. 1 , 23 Sup. Ct. 259, in which sheep driven 500 miles from Utah to Nebraska which traveled 9 miles a day were held immune from taxation in Wyoming where they stopped ond grazed on their way. Another instance is as to that part of the logs in Coe v. Errol, which were not before this court because the Supreme Court of New Hampshire had found them nontaxable in New Hampshire. They were cut in Maine and were floated down the Androscoggin on their way to Lewiston, Me., but were delayed for a season at Errol, [260 U.S. 366, 377] N. H., because of low water. In the cases just cited the transit had begun in one state and was continued through another on the way to a third. This circumstance strengthened the inference that the interruption in the intermediate state did not destroy interstate continuity of the trip. But this was not always so, as Bacon v. Illinois and General Oil Co. v. Crain show. In other words, in such cases interstate continuity of transit is to be determined by a consideration of the various factors of the situation. Chief among these are the intention of the owner, the control he retains to change destination, the agency by which the transit is effected, the actual continuity of the transportation, and the occasion or purpose of the interruption during which the tax is sought to be levied.
Of all the cases in this court where such movable property has been held taxable, none is nearer in its facts than Coe v. Errol to the case at bar. We have pointed out the distinction between the two, which requires a different conclusion here.
Reversed and remanded for further proceedings not inconsistent with this opinion.