SILER et al., AS RAILROAD COMMISSION, v. ILLINOIS CENTRAL RAILROAD COMPANY.

SAME v. SOUTHERN RAILWAY COMPANY IN

KENTUCKY.

SAME v. CINCINNATI, NEW ORLEANS AND TEXAS PACIFIC RAILWAY COMPANY.

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF KENTUCKY.

Nos. 522, 523, 524. Argued February 24, 25, 26, 1909.-Decided April 5, 1909.

Decided on authority of Siler v. Louisville & Nashville Railroad, ante, p. 175.

THESE cases involved the same questions as were involved the preceding case and were argued simultaneously therewith.1

Mr. C. C. McChord and Mr. Robert H. Winn, with whom Mr. James Breathitt, Attorney General of Kentucky, was on the brief, for the appellants.

Mr. Henry L. Stone for appellee in No. 521..

Mr. E. F. Trabue, with whom Mr. John C. Doolan and Mr. Jacob M. Dickinson were on the brief, for appellee in No. 522.

Mr. Alexander Pope Humphrey submitted a brief for appellee in No. 523.

Mr. John Galvin, with whom Mr. Edward Colston was on the brief, for appellee in No. 524.

1 For abstracts of arguments see, ante, p. 183.

Argument for Plaintiff in Error.

213 U. S.

MR. JUSTICE PECKHAM. The above-entitled cases raise the same question that is decided in Louisville and Nashville Railroad Company, supra, and, upon its authority, the decrees in the above cases are

Affirmed.

SELLIGER v. COMMONWEALTH OF KENTUCKY, BY ALEXANDER, REVENUE AGENT.

ERROR TO THE COURT OF APPEALS OF THE STATE OF KENTUCKY.

No. 115. Argued March 16, 17, 1909.—Decided April 5, 1909.

Where there is nothing in the record on which to base them this court cannot indulge in presumptions as to which of several possible forms a transaction may have taken.

Where goods are exempt from the taxing power of the State under the Constitution of the United States because not within the State, the protection of the Constitution extends to warehouse receipts for those goods locally present within the State; and this rule applied to whiskey in a foreign country, warehouse receipts for which were held by a person in Kentucky and sought to be taxed as personal property at owner's domicil.

A tax upon warehouse receipts for goods amounts in substance and effect to a tax upon the goods themselves. Fairbank v. United States, 181 U. S. 283.

The facts are stated in the opinion.

Mr. Alexander Pope Humphrey and Mr. John L. Dodd, with whom Mr. Joseph C. Dodd was on the brief, for plaintiff in error:

The tax in question violates § 10, Art. I, of the Constitution of the United States prohibiting a State from laying any tax upon exports. Brown v. Maryland, 12 Wheat. 419; The License Cases, 5 How. 575; Almy v. California, 24 How. 169; Low v. Austin, 13 Wall. 29; May v. New Orleans, 178 U. S. 504, distinguished.

213 U. S.

Argument for Defendant in Error.

The tax here attempted to be levied is in violation of the Fourteenth Amendment to the Constitution of the United States. Personal property having an actual situs beyond the territorial boundary of a State cannot be taxed by that State. Louisville & Jeffersonville Ferry Co. v. Kentucky, 188 U. S. 385; Delaware R. R. Co. v. Pennsylvania, 198 U. S. 341; Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194; Ayer & Lord Tie Co. v. Kentucky, 202 U. S. 409.

A warehouse receipt is nothing more or less than a document of title, and has always been so treated. One of its uses is as a means by which delivery can be made of an article of personal property which has been sold. 2 Benj. on Sales, 1043; 10 A. & E. Ency. of Law, 1; Gibson v. Stevens, 8 How. 399, 400; Leonard v. Davis, 1 Black, 482, 483; Holliday v. Hamilton, 11 Wall. 564, 565; The Thames, 14 Wall. 106; Crapo v. Kelly, 16 Wall. 640; Insurance Co. v. Kiger, 103 U. S. 556; Union Trust Co. v. Wilson, 198 U. S. 538, 539.

The German warehouse receipts are merely evidence that a given amount of whiskey has been stored there. It is the whiskey, which the receipts are given as evidence of, that has actual value, and the receipts cannot be taxed because to do so would be in effect to tax the whiskey, which, confessedly, is beyond the reach of the taxing power of Kentucky. See Almy v. California, 24 How. 169; Tremlett v. Adams, 13 How. 303; Pollock v. Farmers' Loan & Trust Co., 157 U. S. 581; Postal Tel. Co. v. Adams, 155 U. S. 698; Dobbins v. Commissioners, 16 Pet. 435; Railroad Co. v. Jackson, 7 Wall. 262; Cook v. Pennsylvania, 97 U. S. 566; Steamship Co. v. Pennsylvania, 122 U. S. 326; Leloup v. Mobile, 127 U. S. 640.

Mr. M. J. Holt, with whom Mr. B. F. Washer was on the brief, for defendant in error:

If the 7,000 barrels of whiskey were exported temporarily, that is, to await a better market and to be re-imported when the price justified, or to evade for the time being the revenue tax of ninety cents per gallon, the taxable situs is in Kentucky, the

Argument for Defendant in Error.

213 U. S.

place of residence of the owner. Union Transit Co. v. Kentucky, 199 U. S. 194; Board &c. v. Fidelity Trust Co., 111 Kentucky, 667; May v. New Orleans, 178 U. S. 507; Kentucky Const., §§ 172, 174; Kentucky Stat., § 4020.

If the whiskey, by reason of its exportation and actual situs in Germany, is exempt from a state ad valorem tax, then the warehouse receipts are taxable.

Whiskey warehouse receipts are intangible property, the situs of which is at the domicil of the owner. They are property in and of themselves, and are not mere indicia of title.

By the common and civil law, by the law merchant, and by express statutory provision (Ky. Stats., § 4770) they are negotiable instruments. Commonwealth v. Selliger, 30 Ky. L. Rep. 452, 453; Farmer v. Ethridge, 24 Ky. L. Rep. 653; Cochran &c. v. Ripy, 13 Bush (Ky.), 505; Greenbaum v. Meggilen, 10 Bush (Ky.), 420; Purdy's Beach on Priv. Corp., §§ 271, 272, 509a, 350, 510; Board &c. v. Fidelity Trust Co., 111 Kentucky, 677; 30 A. & E. Ency. Law, pp. 69-77; Winslow v. Fletcher, 52 Am. Rep. 122; Wilkesbarre &c. v. Wilkesbarre, 148 Pa. St. 601; Whitaker v. Brooks, 90 Kentucky, 76; Knox v. Eden, 148 N. Y. 441; Columbus &c. v. Wright, 151 U. S. 470

The provision of the Federal Constitution, Art. I, § 10, Subs. 2, "that no State shall lay an impost or duties on imports or exports," does not apply to the levy of an ad valorem tax on this whiskey or the warehouse receipts as the property of plaintiff in error, because: It is a tax levied upon the property of all citizens of this State, wherever situated. It is not an impost or duty.

The whiskey has lost the character of an export, the original shipment has been broken, four-fifths of it have been sold, the consignor and consignee are one and the same, and the residue is on the market and for sale. May v. New Orleans, 178 U. S. 501, 509 (import case); Coe v. Errol, 116 U. S. 517 (export case); Turpin v. Burgess, 117 U. S. 506, 507 (export case); American Steel Co. v. Speed, 114 U. S. 510, 519.

No Federal question is involved. McCullough v. Maryland,

4 Wheat. 316, 418, 428, 429; Burke v. Wells, 208 U. S. 22–25; Union Pac. Ry. Co. v. Peniston, 18 Wall. 5; Lewis v. Monson, 151 U. S. 549; Home Ins. Co. v. New York, 134 U. S. 600; Delaware R. R. Tax Case, 18 Wall. 206, 231; Coe v. Errol, 116 U. S. 524; Saving Society v. Multnomah County, 169 U. S. 426, 427, 431; Kirtland v. Hotchkiss, 105 U. S. 498; Bank U. S. v. Huth, 4 B. Mon. (Ky.) 443; New Orleans v. Stempel, 105 U. S. 320.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a proceeding to recover back-taxes on personal property of the plaintiff in error, hereafter called the defendant. He pleaded that he did own certain barrels of whiskey which he did not list for the years in question, but that he had exported them to Bremen and Hamburg, in Germany, for sale abroad, and that the State was forbidden to tax them, both because they were exports, U. S. Const., Art. I, § 10, and because their permanent situs was outside the State. Fourteenth Amendment. Delaware, Lackawanna & Western R. R. Co. v. Pennsylvania, 198 U. S. 341. Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194. The plaintiff replied, denying that the export was for sale and that the situs of the whiskey was abroad. It alleged that the defendant was a citizen and resident of Kentucky, engaged there in the wholesale whiskey business, and that he shipped the whiskey to Germany merely to evade revenue and ad valorem taxes on the same. It alleged further that the defendant remained the owner and in possession of the whiskey, except such portion as he reshipped to himself or to purchasers in the United States, that while the whiskey remained in the German warehouses he held the warehouse receipts, used them as collaterals and traded in them, and that the barrels of whiskey sold by him were mostly returned to the State of Kentucky, and all to the United States. The court of first instance held that the whiskey was exempt on both the grounds taken by the defendant. On appeal to the state circuit court for the county, the judgment was affirmed