A herd of sheep driven at a reasonable rate of speed from a
point in Utah across the State of Wyoming, a distance of about five
hundred miles, to a point in Nebraska for the purpose of shipment
by rail from the latter point is property engaged in interstate
commerce to such an extent as to be exempt from taxation by the
Wyoming under a statute taxing all livestock brought into the state
"for the purpose of being grazed," and this notwithstanding that
the sheep were maintained by grazing along the route and that the
owner could have shipped them to their ultimate destination from a
point on the same railroad, which could have been reached from the
starting point without entering the Wyoming.
Brown v.
Houston, 114 U. S. 622;
Pittsburg &c. Coal Co. v. Bates, 158
U. S. 577;
Coe v. Errol, 116
U. S. 317, distinguished.
This was a petition originally filed in the District Court of
Laramie County, Wyoming, by Kelley against Rhoads, County Assessor
of the County of Laramie, to recover back certain taxes to the
amount of $250 upon a flock of sheep owned by the plaintiff and in
charge of a shepherd who was driving them through the State of
Wyoming from the then Territory of Utah to the State of
Nebraska.
The case was finally presented to the district court upon the
following agreed statement of facts, upon which the court
entered
Page 188 U. S. 2
judgment in favor of the defendant, which was affirmed by the
supreme court of the state, 9 Wyo. 352:
Agreed Statement of Facts
"1. John Kelley is now, and was at all times mentioned in the
petition filed herein, a citizen and resident of the State of
Kansas."
"2. Oliver F. Rhoads was the duly elected, qualified, and acting
County Assessor of the County of Laramie, State of Wyoming, from
the 7th day of January, A.D. 1895, until the 4th day of January,
A.D. 1897."
"3. Plaintiff at all times mentioned in the petition herein was
the owner of the sheep mentioned in said petition, and that said
sheep, on or about the 29th day of October, A.D. 1895, were in the
County of Laramie, in charge of James M. Yeates, the agent of the
plaintiff, who was driving and transporting said sheep through the
State of Wyoming from the then Territory of Utah to the State of
Nebraska."
"4. In driving said sheep in such manner, it was the practice of
the person in charge to permit them to spread out at times in the
neighborhood of a quarter of a mile, and while so being driven, the
sheep were permitted to graze over land of that width. They were
driven in some instances through large pastures, in other instances
through the public domain, and in other instances through pastures
enclosed by fences. While being driven from the western boundary of
the state to Pine Bluffs Station, they were maintained by grazing
along the route of travel."
"5. Said sheep were duly returned by plaintiff for taxation and
assessed by the assessor and collector of taxes for the year 1895
in the County of Juab, Territory of Utah."
"6. On the 29th day of October, A.D. 1895, while the said herd
of sheep were in charge of the agent of the plaintiff in the County
of Laramie, State of Wyoming, the defendant, in company with S. J.
Robb, deputy sheriff, of Laramie County, Wyoming, collected from
said plaintiff's agent the sum of two hundred and fifty dollars
($250), alleged to be taxes due for the current year 1895, and
that, before the collection of said tax,
Page 188 U. S. 3
upon demand for the payment of the same by the said defendant,
the plaintiff's agent refused to pay the same, whereupon the said
defendant said to the agent of plaintiff that the said defendant
could or would take enough sheep and sell them, and from the
proceeds retain the said amount of two hundred and fifty dollars
($250) with costs; whereupon the plaintiff's agent, to prevent the
seizure and sale of plaintiff's property and the damage that would
thereby accrue to plaintiff, paid the said defendant the sum of two
hundred and fifty dollars ($250)."
"7. It was a fact, and defendant had knowledge of the fact and
was notified by plaintiff's agent, that said herd of sheep was
being driven across the State of Wyoming to Pine Bluffs Station for
the purpose of shipment, and that the same were not brought into
the state for the purpose of being maintained permanently
therein."
"8. At the time of the regular assessment of property for the
purpose of taxation in the County of Laramie, in the year 1895,
plaintiff had no property of any kind whatever in the County of
Laramie, or in the State of Wyoming."
"9. At the time the assessment of property in the County of
Laramie for the year 1895 was equalized by the Board of
Equalization of the County of Laramie, plaintiff had no notice of
the time or place of meeting of said Board of Equalization, or that
any assessment had been made against him for any purpose whatever
within the State of Wyoming or the County of Laramie."
"10. At the time the taxes for the current year 1895 were
regularly and legally levied in the said County of Laramie,
plaintiff had no property whatever in the County of Laramie or
State of Wyoming."
"11. Plaintiff has demanded of defendant a return to him of the
amount of tax so collected from plaintiff's agent, but defendant
refused and still refuses to return to plaintiff the amount so
collected."
"12. The time consumed in driving said sheep from the western
boundary of the State of Wyoming to Pine Bluffs Station, in Laramie
County, was from six to eight weeks, and by the route followed, the
distance traveled was about five hundred miles. "
Page 188 U. S. 4
"13. The said taxes were assessed, levied, and collected by the
defendant without the action, authority, or assistance of the board
of county commissioners, or of any other officer or officers of
Laramie County."
"14. The said property so owned by the plaintiff had not been
regularly assessed in any other County of the state for that year,
and no taxes had been paid thereon in any other county in the
state."
"15. That, for the purpose of shipping said sheep, it was not
necessary that they should be driven into the State of Wyoming, and
that the railroad over which they were shipped could be reached
from the point where the sheep were first driven by traveling a
less distance than was necessary to travel from the place where
they were first driven to any point in the State of Wyoming."
"16. That, at the time the $250 was paid to the defendant, it
was paid without any protest other than appears in the other
paragraphs of this agreed statement of facts."
MR. JUSTICE BROWN delivered the opinion of the Court.
This case resolves itself into the single question whether the
property of the plaintiff was engaged in interstate commerce to
such an extent as to be exempt from taxation by the State of
Wyoming, through which it was being transported.
The statute of the state upon this subject, Laws 1895, c. 61, is
as follows:
"SEC. 1. All livestock brought into this state
for the
purpose of being grazed shall be taxed for the fiscal year
during which it shall have been brought into the state."
"SEC. 2. Assessors are, for the purpose of enforcing this
act,
Page 188 U. S. 5
hereby vested with the powers and charged with the duties vested
in and conferred upon other officers for the collection of
taxes."
"SEC. 3. It shall be the duty of the assessors in the several
counties to levy and immediately collect the taxes as provided for
in this act, as soon as livestock is brought into their counties to
graze, and to pay without delay such sums to the treasurers of
their respective counties."
"SEC. 4. Whenever the owner of any livestock upon which a tax
has been levied, as provided in this act, shall refuse to
immediately pay the amount of such tax to the assessor who levied
it, such assessor shall proceed forthwith to collect such tax, as
provided by law for the collection of delinquent taxes on other
kinds of personal property."
The question to be determined, then, is whether the stock of the
plaintiff was brought into the state
for the purpose of being
grazed at the time it was assessed for taxation. This question
must be answered by the agreed statement of facts. While this
statement is binding upon this Court, as well as the state courts,
different inferences may be drawn from these facts as to the
applicability of the state statute. Had the state court found
directly the ultimate fact that these sheep were brought into the
state for the purpose of being grazed, such finding might have
bound us, but, under the facts actually found or agreed upon, we
are at liberty to inquire whether they support the judgment.
Harrison v. Perea, 168 U. S. 311.
The law upon this subject, so far as it concerns interference
with interstate commerce, is settled by several cases in this
Court, which hold that property actually in transit is exempt from
local taxation, although if it be stored for an indefinite time
during such transit, at least for other than natural causes or lack
of facilities for immediate transportation, it may be lawfully
assessed by the local authorities.
State v. Engle, 34
N.J.Law 425;
Standard Oil Co. v. Bachelor, 89 Ind. 1;
Burlington Lumber Co. v. Willetts, 118 Ill. 559.
The first case in which the question arose is that of
Brown
v. Houston, 114 U. S. 622, in
which it was held that coal mined in Pennsylvania and sent by water
to New Orleans to
Page 188 U. S. 6
be sold in the open market there on account of the owners in
Pennsylvania, and lying at New Orleans in flatboats for sale,
became intermingled on its arrival there with the general property
of the state, and was subject to taxation under the general laws of
Louisiana, although it might have been, after arrival, sold from
the vessel on which the transportation was made, without being
landed, and for the purpose of being taken out of the country by a
vessel bound to a foreign port. The case was affirmed in
Pittsburg &c. Coal Co. v. Bates, 156 U.
S. 577, which differed from the former only in the fact
that the coal did not reach New Orleans, the port of destination,
but was still on the Mississippi River, nine miles above Baton
Rouge, where it was held for sale. It appeared that the boats were
held subject to the orders of plaintiff to be navigated to such
place or places as he might deem convenient or advantageous to the
trade in which he was engaged.
In
Coe v. Errol, 116 U. S. 517, it
was held that logs cut in New Hampshire, which were hauled down to
the Town of Errol, on the Androscoggin River in that state, to be
thence floated down the river to Lewiston, Maine, and were awaiting
a convenient opportunity for such transportation, were still a part
of the general mass of property of the state, liable to taxation,
if taxed in the usual way in which such property was taxed in that
state. It was a stipulated fact that the timber thus cut had lain
over one season, being about a year, in the Androscoggin River in
that state, either in Errol, Dummer, or Milan, and that other
timber referred to in the petition as having been cut in Maine had
lain over in Errol since the spring or summer before the taxation.
The question is thus stated by Mr. Justice Bradley:
"Are the products of a state, though intended for exportation to
another state and partially prepared for that purpose by being
deposited at a place or port of shipment within the state, liable
to be taxed like other property within the state?"
Said he:
"There must be a point of time when they cease to be governed
exclusively by the domestic law and begin to be governed and
protected by the national law of commercial regulation, and that
moment seems to us to be a legitimate one for this purpose, in
which
Page 188 U. S. 7
they commence their final movement for transportation from the
state of their origin to that [the state] of their destination. . .
. Until then, it is reasonable to regard them as not only within
the state of their origin, but as a part of the general mass of
property of that state, subject to its jurisdiction and liable to
taxation there."
The substance of these cases is that while the property is at
rest for an indefinite time awaiting transportation, or awaiting a
sale at its place of destination, or at an intermediate point, it
is subject to taxation. But if it be actually in transit to another
state, it becomes the subject of interstate commerce, and is exempt
from local assessment.
We place no reliance upon the fact in this case that plaintiff's
sheep had been duly returned for taxation and assessed for the
taxes of 1895 in the Territory of Utah, since, although this may
have some bearing upon the equities of the case, it was declared in
Coe v. Errol to have no significance as a matter of
law.
The question turns upon the purpose for which the sheep were
driven into the state. If, for the purpose of being grazed, they
are expressly within the first section of the act. But if for the
purpose of being driven through the state to a market, they would
be exempt as a subject of interstate commerce, though they might
incidentally have supported themselves in grazing while actually in
transit. We think the question is sufficiently answered by the
statement of facts, from which it appears (3) that the sheep were
in charge of plaintiff's agent, "who was driving and transporting
said sheep through said State of Wyoming, from the then Territory
of Utah to the State of Nebraska." (4) "While being driven from the
western boundary of the state to Pine Bluffs Station, on the
eastern boundary, they were maintained by grazing along the route
of travel." (7) "It was a fact, and defendant had knowledge of the
fact and was notified by plaintiff's agent, that said herd of sheep
were being driven across the State of Wyoming to Pine Bluffs
Station
for the purpose of shipment, and that the same
were not brought into the state for the purpose of being maintained
permanently there." (12) "The time consumed in driving
Page 188 U. S. 8
said sheep from the western boundary of the State of Wyoming to
Pine Bluffs Station, in Laramie County, was from six to eight weeks
and by the route followed the distance traveled was about 500
miles."
It thus appears that the only purpose found for which this herd
of sheep was being driven across the state was for shipment, and
the agreed statement wholly fails to show that they were detained
at any place within the state for the purpose of grazing, or
otherwise. As they consumed from six to eight weeks in traveling
about 500 miles, or, as the supreme court found at the rate of
about nine miles per day, it does not even appear that they
loitered unnecessarily on the way. As they required sustenance on
the journey, and could obtain it only by grazing, it would appear,
though there is no testimony upon that point, that they could
hardly have been driven more rapidly without a loss of flesh during
the transit. The only evidence as to the manner in which such
grazing was conducted is contained in the fourth stipulation:
"In driving said sheep in such manner it was the practice of the
person in charge to permit them to spread out at times in the
neighborhood of a quarter of a mile, and while being so driven the
sheep were permitted to graze over land of that width. They were
driven, in some instances, through large pastures, in other
instances through the public domain, and in other instances through
pastures enclosed by fences."
Considering that the herd numbered about 10,000 sheep, and were
moved eastward at the rate of nine miles a day, it does not seem as
though the fact that they were permitted to graze over a width of a
quarter of a mile was evidence of any unnecessary delay, and while
the owner would undoubtedly be liable for any damage done to
pasturage en route, there is no evidence at all that the transit of
the sheep was delayed for the purpose of grazing while going
through the state. Bearing in mind that the weight of all the
previous cases in this Court has been laid upon the fact of an
indefinite delay, awaiting transportation at the commencement of
the journey, or awaiting sale or delivery at its termination the
facts of this case fail completely to bring it within those
authorities. The fact that the sheep may not
Page 188 U. S. 9
have lost flesh, or may even have gained flesh, during their
transit through the state, is impertinent, unless the primary
purpose of their being driven there was for grazing.
It is true that the sheep might have been transported by rail
from Utah to Pine Bluffs, but the statement fails to show whether
that course would have been more or less expensive than the one
adopted. It is clear that the owner had the right to avail himself
of such means of transportation as he preferred, and, in estimating
the probable cost, he was at liberty to consider the fact that he
was licensed to make use of the public lands of the United States,
without charge, for the sustenance of his sheep.
Buford v.
Houtz, 133 U. S. 320. Why
he shipped them by rail from Pine Bluffs is not explained, but it
seems quite probable that it was due to the fact that the public
lands in Nebraska had been so far taken up that the sheep would not
be able to obtain sufficient nourishment if they were driven
through that state. We do not deny that it may have been
plaintiff's intention not only to graze, but to fatten, his sheep
while en route to Wyoming. Indeed, we may suspect it, but there is
nothing in the agreed statement of facts to justify that inference.
While the fifteenth finding states that, for the purpose of
shipping said sheep it was not necessary that they should be driven
into the State of Wyoming, and that they might have been shipped on
the railroad much farther west than Pine Bluffs Station, that
finding really resolves itself back to the proposition already
stated, that the owner or his shepherd was at liberty to choose his
own method of transportation, and as he took a direct route through
the state, deviating neither to the right nor to the left, and
traveled as rapidly as a due regard for the condition of his flock
permitted, we think there could be no fair inference from these
facts that the sheep were introduced into the state for the purpose
of grazing.
There is another consideration worthy of attention, and that is
that the right which the State of Wyoming had to tax this property
might have been exercised in every state through which the sheep
were driven. In this particular case, it would appear that they
were shipped at Pine Bluffs, but they might with equal propriety
have been driven through Nebraska and
Page 188 U. S. 10
Iowa before reaching their final destination. Indeed, section 3
of the act, which provides
"it shall be the duty of the assessors in the several counties
to levy and immediately collect taxes as provided for in this act,
as soon as livestock is brought into their counties to graze,"
leaves it an open question whether these taxes may not have been
assessed in every county through which these sheep were driven.
The judgment of the Supreme Court of Wyoming is therefore
reversed, and the case remanded to that court for further
proceedings not inconsistent with this opinion.
