Appeal, No. 24, May T., 1960, from judgment of Court of Common Pleas of Dauphin County, No. 274 Commonwealth Docket, 1954, in case of Commonwealth of Pennsylvania v. Central Railroad Company of Pennsylvania. Judgment, as modified, affirmed; reargument refused May 25, 1961.
Roy J. Keefer, with him Hull, Leiby and Metzger, for appellant.
George W. Keitel, Deputy Attorney General, with him Anne X. Alpern, Attorney General, for Commonwealth, appellee.
Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE COHEN.
This is an appeal from the decision of the Court of Common Pleas of Dauphin County sustaining the action of the Board of Finance and Review in refusing appellant's petition for resettlement of its capital stock tax, Act of June 1, 1889, P.L. 420, §§ 20, 21, as amended, 72 PS §§ 1871, 1901, 1902, for the year 1951.
Appellant, Central Railroad Company of Pennsylvania, a domestic corporation, operates a railroad, the tracks of which are solely within Pennsylvania. Appellant interchanges freight cars with connecting carriers as required by the Interstate Commerce Act of 1920, as amended, 49 U.S.C.A. § 1, pars. 9-14 (1959), thereby promoting the rapid and efficient through movement of freight in contrast to the prior burdensome practice of transferring freight from cars of one railroad to the cars of another. Under the current "car service and per diem agreement" entered into by appellant and all other members of the Association of American Railroads, the owning railroad is paid a per diem rate of $1.75 for its freight cars while on the lines of other railroads.
Appellant also interchanges freight cars and diesel locomotives pursuant to an "operating agreement" with
the Central Railroad Company of New Jersey, a New Jersey corporation which has no trackage in Pennsylvania. Appellant and the Central Railroad of New Jersey run regularly scheduled trains between Pennsylvania and New Jersey.
In its capital stock report for 1951, appellant claimed that an average proportionate value of its diesel locomotives and freight cars which were employed on lines of other railroads outside of Pennsylvania were not subject to the capital stock tax. The settlement of appellant's tax did not allow such claim. Resettlement and review of the settlement were refused and an appeal to the Court of Common Pleas of Dauphin County followed.
The case was tried without a jury and most of the facts were contained in a stipulation. Thereafter the case was argued before the court en banc which entered a judgment nisi. The appellant filed exceptions which, on final ...