No answers were filed and no trial was had upon the merits. For the purpose of determining whether or not appellant has stated a claim under the Declaratory Judgments Act we assume, as we must, that all the allegations of the complaint are true. Chicago Metallic Manufacturing Co. v. Edward Katzinger Co., 7 Cir., 123 F.2d 518; Consolidation Coal Co. v. Martin, 6 Cir., 113 F.2d 813. And a similar assumption is made as against a motion to dismiss when injunctive relief is sought. Polk Co. v. Glover, 305 U.S. 5, 59 S.Ct. 15, 83 L.Ed. 6. Conclusions of law and unwarranted inferences of fact are excluded from consideration.
For the purpose of a motion to dismiss all the well pleaded allegations of the bill must be accepted as true. John B. Kelly Inc. v. Lehigh Navigation Coal Co., Inc., 3 Cir., 1945, 151 F.2d 743; Douglas v. City of Jeannette, 3 Cir., 1942, 130 F.2d 652; Mosher v. City of Phoenix, 287 U.S. 29, 53 S.Ct. 67, 77 L. Ed. 148; Chicago Metallic Mfg. Co. v. Edward Katzinger Co., 7 Cir., 123 F.2d 518; Consolidation Coal Co. v. Martin, 6 Cir., 113 F.2d 813; Western Casualty Surety Co. v. Beverforden, 8 Cir., 93 F.2d 166. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.
Also appellee falls within the statutory description of those corporations which have or exercise a "special or exclusive privilege or franchise not allowed by law to natural persons." It is plain that in this portion of the section the word "franchise" is used in the usual sense of a special privilege conferred by grant from the government, and not in the sense of "intangible property," as used later in the section, and as defined in Consolidation Coal Co. v. Martin, 6 Cir., 113 F.2d 813, this day decided. Irvine Toll Bridge Co. v. Estill County, 210 Ky. 170, 275 S.W. 634, holds that a franchise is the privilege of doing that which does not belong to the citizens generally by common right.
In short, the mining company had two businesses, one of which was subject to regulation by reason of the commodity supplied to the public. Similarly in Consolidated Coal v. Martin, 113 F.2d 813 (6th Cir. 1940) electricity was produced by the mines and distributed to tenants and non-tenants for domestic use. The Commission uses the example of a land developer who also supplied water to the lots and this operation is generally held to be the activity of a public service corporation.
Valcour v. Village of Morrisville, 110 Vt. 93, 2 A.2d 312. "6. Acceptance of substantially all requests for service. Consolidation Coal Co. v. Martin, 8 Cir., 113 F.2d 813, 817; Wingrove v. Public Service Commission, 74 W. Va. 190, 81 S.E. 734, L.R.A. 1918A, 210. "7. Service under contracts and reserving the right to discriminate is not always controlling.
Valcour v. Village of Morrisville, 110 Vt. 93, 2 A.2d 312. 6. Acceptance of substantially all requests for service. Consolidation Coal Co. v. Martin, 8 Cir., 113 F.2d 813, 817; Wingrove v. Public Service Commission, 74 W. Va. 190, 81 S.E. 734, L.R.A. 1918A, 210. 7. Service under contracts and reserving the right to discriminate is not always controlling.
" In Valcour v. Morrisville, 110 Vt. 93, 2 A.2d 312, it was held that as long as a village furnishing electricity to a rural community "serves and monopolizes this territory, it should not be permitted to discriminate between those desiring such service." In Consolidation Coal Company v. Martin, 113 F.2d 813, the court stated that " acceptance of substantially all requests for service (of electricity) constituted an election to engage in such business. The company has in practical effect devoted its property in part to a public function.
The assessment of a tax on the "franchise" of Commercial is an attempt to reach the added value of assets of Commercial in Kentucky derived from the fact that Commercial is an operating or going concern. This so-called franchise tax is not an excise tax, but has been adjudged to be an ad valorem property tax. Henderson Bridge Company v. Commonwealth, 99 Ky. 623, 631, 31 S.W. 486, 29 L.R.A. 73, affirmed 166 U.S. 150, 17 S.Ct. 532, 41 L.Ed. 953; Consolidation Coal Company v. Martin, 6 Cir., 113 F.2d 813. For such a property tax to be valid, the property taxed must have a situs within the taxing unit. 51 Am.Jur., pages 472, 473 and 474; Standard Oil Company v. Commonwealth ex rel. Allphin, Ky., 311 S.W.2d 372. The Department has invoked the principle originating in Pullman's Palace-Car Company v. Commonwealth of Pennsylvania, 1891, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613, where, in such multi-state businesses as railroads, barge lines (Ott v. Mississippi Valley Barge Line Company, 1949, 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585), and bus lines (State Tax Commission v. Central Greyhound Lines, 252 Ky. 300, 67 S.W.2d 35), the total property of the respective taxpayers is valued as a unit and the taxing state permitted to levy on a fairly ascertained portion thereof as if the property were permanently located within the state.
" The same principle was acknowledged to be correct in the two later cases of Blue Coach Lines v. Lewis, 220 Ky. 116, 294 S.W. 1080, and State Tax Commission v. Central Greyhound Lines, 252 Ky. 300, 67 S.W.2d 35. See, also, Consolidation Coal Company v. Martin, 6 Cir., 113 F.2d 813. However, we have held in some cases — one of which is the Greyhound Lines case, supra — that a fixed number of units of taxable property, such as transportation vehicles, may be given a permanent situs in this jurisdiction for the purposes of ad valorem taxation, although none of the units become permanently located herein.