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regular business and that of The Parker Mills Company, as to permanency, it is hard to perceive. But I do not understand the court as deciding that a statute taxing the property of a company carrying on such a business as The Parker Mills Company, would be void, because the situs of the property was not sufficiently permanent to make it property within the jurisdiction of the state, and to modify the rule that personal property follows the person ; that would be to overrule Hoyt v. The Commissioners of Taxes : 23 N. Y. 224. They merely decide that the company was not taxable under the statute named.

In Transitu.-Goods in transit to a market are not liable to taxation in the state through which they pass to arrive at a market for sale: State v. Eagle, 34 N. J. L. (5 Vroom) 425; Conley v. Chedic, 7 Nevada 336; Carrier v. Gordon, 21 Ohio 605. The case in New Jersey arose under a statute which makes a person liable to be taxed in the township or ward in which he resides, for all personal estate in his possession or under his control as trustee, guardian, executor, administrator or agent.” An assessment was made on coal lying on a pier at Elizabethport, under the control of an agent. The coal was the property of a company doing business in Pennsylvania, was mined on their land in Pennsylvania, and sent by the cars of the Central Railroad to Elizabeth port, to be there shipped by water to other markets for the purposes of sale. It was the custom of the company, when the coal arrives at Elizabethport, to have it separated according to sizes, and when a cargo of one size is obtained, it is shipped to points in New England, or up the IIudson river, as soon as a vessel can be chartered. None of the coal is sold for consumption at Elizabethport. DUPUE, J., delivering the opinion of the court, said: “ The duties of the agents were simply to obtain and transmit orders to their principals, and superintend reshipment when delivered. The property was not in the state under such circumstances as to be liable to taxation here. The power of the state to tax subjects of commerce, where their transit for the purpose of commerce has ceased, and they have become incorporated and mixed up with the mass of property in the community, is well settled. But that a tax on the property belonging to a citizen of another state, in its transit to market in other states, which is delayed in this state, not for the purposes of sale, but merely for separation and assortment, for convenience of shipment to its desti

nation, is a tax on commerce among the states, is too plain to require argument. It is not the mode in which the tax is imposed, nor the person against whom it is assessed, that determines whether the taxation is within the power of the state. If a tax can be levied on the quantity on the wharf within the state when the assessment is made, why not on every ton sent across the state throughout the year? A change in the mode and time of assessment is all that would be necessary to accomplish that purpose.' In the Nevada case, wood cut in California, owned by a citizen of that state, thrown into Carson river, and passing D. county in Nevada to find a market in 0. county in Nevada, was held not taxable in D. county, under a statute requiring all property in the county a specified period to be taxed there, because the wood was in D. county at the period specified. In the Ohio case cited, the statute makes all tangible property in the state liable to taxation, whether owned by resident or non-resident. The property which was claimed to be exempt from taxation, because in transitu to another state, was property in Ohio, sold to a non-resident and merely awaiting the opening of navigation for its removal. It was held liable to taxation. The court say: “ If the property is, at the time the tax attaches, in transitu, either through the state, or from a point in the state to one out of it, it is not within the state in the sense of the statute. Such was not the condition of this property; it had a situs when the tax attached. Simple purchase with intent to remove cannot change

it.” 9. Double Taxation, or Taxation on Credits.—The equality or justice of the policy of taxing credits, is a question upon which political economists, legislators and courts differ. A commission from the legislature of New York, in their report on this subject, condemn the practice of taxing credits, while a similar commission from Connecticut and one from New Jersey hold it to be a just and equitable mode of taxation : Report of Commissioner Wells et al., 1871, to the New York Legislature, pp. 72-3. Mr. Walker, in his work, demonstrates the fairness of this system of taxation : Walker, Science of Wealth, ed. 1872, pp. 361-2-3.

As to the mortgagee, or, in case of a sale of land on credit

1

Citing Erie Railroad v. State, 31 N. J. L. (2 Vroom) 531, where it was decided that a transit duty of three cents on every passenger, and two cents on every ton of freight, transported by corporations through the state, was void.

Vol. XXIV.-18

without mortgage, the holder of the notes for purchase-money, it is settled in several states that the taxation of the credits is not double taxation: The People v. Rhodes, 15 Ill. 304; State v. Manchester, 1 Dutcher 531; People v. Whartenby, 38 Cal. 461; State v. Williamson, 33 N. J. L. (4 Vroom) 77. The case in California decided it was not double taxation as to the mortgagee, but the question was reserved as to the mortgagor : People v. McCrary, 34 Cal. 459, also decides the same principle. In a subsequent case it was decided that where the mortgagee paid the tax on the debt, the mortgagor cannot complain of double taxation; it does not affect him. There was an intimation that perhaps the statute, which only allows the indebtedness of a person to be deducted from the amount of solvent demands, in ascertaining the amount of personal property to be taxed, conflicted with that provision of the Constitution requiring property to be assessed at its value, inasmuch as the value of the land in the hands of the mortgagor is his interest in the land, less the debt: Lick v. Austin, 43 Cal. 590. This question was most elaborately discussed in a late case in California; the former decisions were reviewed and sustained by a divided court: Savings f Loan Society v. Austin, 46 Cal. 415. CROCKETT and NILES, JJ., thought the taxation of the property mortgaged and of the debt secured was double taxation. The Savings and Loan Society was a banking corporation, with a capital of $500,000, which was invested in U. S. bonds. All the solvent debts due the corporation were for moneys deposited by depositors in the bank, which were loaned out at interest, to be repaid the depositors when returned by the borrowers, with interest accumulating from time to time. These loans were secured by mortgage. This corporation was assessed for solvent debts at $7,968,740, the amount of their loans. It was claimed that the depositors had been likewise assessed and had paid taxes on the deposits. A majority of the court, while holding the opinion just stated, thought it would have been a case of double taxation, if the record had sustained the claim set up that the depositors had been assessed and paid taxes on the deposits. BELCHER, J., says: “When money is deposited in a savings bank, to be loaned out for the benefit of the depositor, if it is taxed to the depositor, and the bank has loaned out the money and is taxed upon the note and mortgage, it is double taxation. In this case it does not appear that the taxes had been paid by the depositors on any of their deposits, and therefore the question of double taxation does not arise. It must appear that the tax has been once paid or tendered by some one. This case is cited in a later case in the same state, as deciding that solvent debts are liable to taxation : People v. Ashbury, 46 Cal. 523.

Where property is taxed in one state, on account of the residence of the decedent, and in another because the evidences of debt in the hands of the ancillary administrator is in the latter state, the fact that it will be thus subject to double taxation is not weighed at all by the courts of the latter state: St. Louis County v. Taylor's Administrator, 47 Mo. 594. Such taxation may be unjust, but the court cannot disregard the law because it has that effect: Tallman v. Butler County, 12 Iowa 534 ; approved in 28 Iowa 370 ; Toll Bridge Company v. Osborn, 35 Conn. 7. But if a certain kind of property is clearly taxable under one section of the statute, the statute will be so construed as not to make the same property taxable again under another section of the statute: Savings Bank v. Portsmouth, 52 N. H. 17.

10. Conclusion as to Taxable Situs of Personal Property.We conclude that the situs of personal property for the purposes of taxation depends in a great measure upon the nature of the property.

(a.) If it be chattels, which have a tangible existence, they are taxed in the locality in which they are situated.

(6.) Evidences of debt, such as state stocks and bonds of municipal corporations, transferable by delivery, and indeed all negotiable instruments which are of a chattel nature, are taxable where the evidence of the debt is actually situated.

(c.) But chattels which are in transit from one state to another, seeking a market, or which are in the hands of a consignee for sale merely, are not subject to taxation in the state where they are actually situated, but in that of the owner.

(d.) Debts not negotiable are taxable where the owner resides; they follow his person.

(e.) But where it is necessary, in case of the death of the owner, to have administration in the state of the debtor, the legal title being in the ancillary administrator or executor, the assets of the estate recoverable in the ancillary forum may be taxed by that state. But legacies, the proceeds of property situated in the domiciliary forum, although passing to legatees through the hands of

the ancillary administrator, are not taxable in the state of the ancillary forum.

(f.) Stocks of corporations follow the person of the owner, and are taxed at the place of his residence.

(9.) Ships are likewise taxable at the residence of the owner, which is generally that of the home port, or place of registry; although when they are in different states the residence of the owner governs.

(1.) The rule as to debts not negotiable being taxed at the residence of the owner is modified, to the extent that where a person residing in one state, has an agent in another, who loans or invests money for him, holds the evidences of debt, and so invests the proceeds of the loans when collected in the same state, it is held then to be taxable at the residence of the agent.

W. H. B. NORFOLK, Va.

RECENT AMERICAN DECISIONS.

Supreme Court of Errors of Connecticut. WILLIAM W. WELCI v. TIE BOSTON AND ALBANY RAILROAD

COMPANY. The defendants, a railroad company, claimed to be exempt from liability for an injury to a horse transported upon their road, by reason of a stipulation in the bill of lading that they were not to be liable for any one of certain specified injuries or causes of injury to any animal thus carried. The court charged the jury that they were still liable for any injury caused by want of ordinary care on their part. Held, that the charge was correct.

A stipulation by a bailee for hire for exemption from the consequences of his own negligence, has no validity.

There may, however, be a valid stipulation for a degree of responsibility less than that imposed by law.

Where a stipulation in such a case was open to a question as to whether it in. tended an exemption from all liability or only a limitation of the common-law liability, and the judge charged the jury that it was void, but that the defendants would be liable only for want of ordinary care, it was held that the defendants were not injured by the charge of the judge that the stipulation was void, even if it were not so, since he held them only to the degree of liability to which they would have been held under any construction of it.

Case, against the defendants as common carriers, for an injury to a horse carried by them.

On the trial, it was proved that the plaintiff, at Whitesboro', New York, delivered the horse to the New York Central Railroad Com

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