Summary
In Price v. Detroit c. Ry. Co., 145 U.S. 651, the Supreme Court affirmed the judgment of the circuit court and approved an instruction to the jury that the telegraph operator who had negligently failed to notify trainmen of the orders of the train dispatcher, made to prevent a collision with another train on the line, was the fellow servant of an engineer upon the train.
Summary of this case from Buteau v. N.Y., N.H. H.R.R. Co.Opinion
Docket Nos. 11811-11815, 11838, 11839.
Decided August 29, 1972.
Appeal from Wayne, Roland L. Olzark, J. Submitted Division 1 June 12, 1972, at Detroit. (Docket Nos. 11811-11815, 11838, 11839.) Decided August 29, 1972.
Complaint by Price Paper Corporation against the City of Detroit and Wayne County to recover certain ad valorem taxes paid under protest. Judgment for plaintiff. Defendants appeal. Affirmed.
Kenneth Murray and Brownson Murray, for plaintiff. Michael M. Glusac, Corporation Counsel, and Arthur Yim and Lawrence W. Morgan, Assistants Corporation Counsel, for defendant City of Detroit.
Aloysius J. Suchy, Corporation Counsel, and William F. Koney, Assistant Corporation Counsel, for defendant Wayne County.
Defendants, City of Detroit and the County of Wayne, appeal the separate successive determinations of the trial court granting plaintiff recovery of certain ad valorem taxes paid under protest.
The plaintiff, Price Paper Corporation, a Delaware corporation, is in the business of importing newsprint from Canada for resale to various newspapers in the United States. A principal customer is the Detroit Shopping News. In 1967 plaintiff began to rent storage space for its imported newsprint at the facilities of Safran Printing Co. instead of placing it in public warehouses as it had formerly done. At about the same time, Safran became the printer for plaintiff's customer, the Detroit Shopping News. Plaintiff's paper remained stored in its original wrappings until such time as Safran readied it for the presses. At that time, according to plaintiff's supply contract with the Detroit Shopping News, the paper would be identified to the contract and title would pass from Price to the Shopping News.
Defendants levied an ad valorem tax on the rolls of newsprint stored with Safran commencing with the year 1967. Plaintiff paid under protest, claiming an import exemption under the Federal Constitution, US Const, art I, § 10(2).
Defendants claim the newsprint lost the character of an import. Inasmuch as the paper rolls stored with Safran were destined for the Shopping News, printed on the premises, and were readily available as part of the printer's working inventory, they thereby passed into the use for which they had been imported, i.e., as part of the current operating requirements of the publishing process. Hooven Allison Co v. Evatt, Tax Commissioner, 324 U.S. 652; 65 S Ct 870; 89 L Ed 1252 (1945); Youngstown Sheet Tube Co v. Bowers, Tax Commissioner, 358 U.S. 534; 79 S Ct 383; 3 L Ed 2d 490 (1959), and see Knight Newspapers, Inc v. Detroit, 16 Mich. App. 438 (1969). We find, however, the so-called "use doctrine" relied on in those cases inapplicable to the cases presently before us and to this plaintiff. Unlike Youngstown Sheet Tube Company, the United States Plywood Corporation (second plaintiff in Youngstown), or Knight Newspapers, plaintiff here imported the merchandise for resale and not for its own manufacturing or publishing operation. Until the sale is consummated and the paper identified to the contract the holding in Detroit v. Lake Superior Paper Co, 202 Mich. 22 (1918), controls, i.e., the right to resell imported goods free of prior local property tax goes along with the right to bring them into the country. We affirm the lower court summary judgments to return the assessments.
There remains one final matter for determination. In two of the cases joined here on appeal, plaintiff was denied recovery of the illegally assessed taxes for having failed to bring suit within 30 days of payment, MCLA 211.53; MSA 7.97. Plaintiff urges that payments constitutionally void must be repaid irrespective of compliance with the statute of limitations. We disagree. The provision of the Federal Constitution prohibiting state taxation of imports is not self-executing. Plaintiff's failure to exercise the existing statutory remedy within the prescribed time limit does not deny the constitutional tax exemption on imports. It does, however, foreclose further assertion of the exemption in the courts. Even in the case of an illegal tax, failure to bring suit within 30 days after payment acts as a complete bar to recovery. Norton Twp v. Cockerill, 265 Mich. 405 (1933); Lingle v. Elmwood Twp, 142 Mich. 194 (1905). The trial court's dismissal of suit in these two instances is likewise affirmed.
All concurred.