City of St. Paul v. Merritt

• Decision Date: 01 January 1862
• Citation: City of St. Paul v. Merritt, 7 Minn. 198 (Minn. 1862)
• Parties: THE CITY OF ST. PAUL vs. DAVID MERRITT.
• Court: Minnesota Supreme Court

7 Minn. 198

THE CITY OF ST. PAUL vs. DAVID MERRITT.

Supreme Court of Minnesota.

Points and authorities for plaintiff in error: —

1. This question involves the construction of section 1, ch. 8, of said consolidated act, Laws of 1858, p. 37. It provides, "that all property, real or personal, within the city except such as may be exempt by the laws of this state, shall be subject to taxation for the support of the city government." See p. 38, § 3. This was not property exempt by law; on the contrary, such property is made taxable under the constitution. State Const. art. 9, §§ 3-4; Porter v. Heydock, 6 Vt. 374; Catlin v. Hull, 21 Vt. 157. The property, being invested and payable in the City of St. Paul, had its situs there, as much as such personal property is capable of having a situs. Catlin v. Hull, 21 Vt. 157. And the act provides that personal property within the city shall be liable to taxation, etc.

2. The defendant had his remedy under the charter, to object to the assessment, while it does not appear he did so, nor does he show any excuse for not so doing. Consolidated Act, ch. 8, § 3, Laws of 1858, p. 38; Osborn v. Danvers, 6 Pick. 98; Little v. Greenleaf, 7 Mass. 239.

Now, in this case, the plaintiff put in evidence on trial, a transcript of the assessment, under sec. 20, ch. 10, of said act, Laws of 1858, p. 49, which made out a prima facie case. The defendant neither averred in his defense want of notice, nor any other reason for not seeking his remedy under the charter, nor did he introduce any evidence upon that point; and his own evidence showed that he was then actually sojourning and staying in St. Paul. And see § 2, ch. 8 of said act, Laws of 1858, p. 38.

3. The plaintiff's own evidence showed that he had a sufficient domicil in St. Paul for the purpose of taxation. Greene v. Greene, 11 Pick. 410; Putnam v. Johnson, 10 Mass. 488; Cambridge v. Charlestown, 13 Mass. 501.

Points and authorities for defendant in error: —

1. The finding of the court upon the question of fact in the case is conclusive, and not the subject of review. His residence or domicil was in Carmel, New York, and he could have but one, for one purpose, at the same time. 5 Barb. 505; 10 Pick. 77; 1 Met. 242-250; 1 Kent, 78-80; 23 Pick. 170; 10 Mass. 488.

2. The defendant, being a non-resident of the state, was not liable to taxation on account of his personal property, of the description mentioned in the complaint, to-wit, money loaned and at interest. The assessor had no jurisdiction in the premises. The tax in this case is one in personam. The property had no locality, but followed the owner. The People ex rel. Mygatt v. Supervisors of Chenango Co. 11 N. Y. 563; 15 N. Y. 316; 1 Rev. Stat. N. Y. (4th ed.), 714, §§ 1 and 3; id. 715, Title 1, § 5; Pub. Stat. 229-231; Sess. Laws 1854, p. 32, ch. 6, ch. 8; 12 Pick. 10; 1 Met. 250-242; 12 Met. 178; 9 Yerg. 490; McCullough v. State of Maryland, 4 Wheat. 316; 1 Kent, 425-6-7.

3. The taxing power under which the city acts, was conferred by the territorial legislature, ch. 8 of ch. 6, Sess. Laws, 1854, p. 32. Conceding that the legislature had the right, under the organic act, of conferring upon the city the power of taxing debt due non-residents, of which quare (?) — it is clear from an examination of the provisions relating to the subject, contained in the charter, (see said ch. 8, and the provisions of the Rev. Stat. relating to taxation, Comp. Stat. 229-30-31), that no such power was conferred, or intended to be. In reference to general taxation, the legislature have never exercised any such power (secs. 1 and 9 to 14 inclusive, Pub. Stat. 219 to 231) and it is not to be assumed, in the absence of language clearly indicating such intention, that they intended to confer upon the city the power of taxing a kind of personal property which they have never sought to tax for general purposes. (a.) Assuming the existence of the power claimed in this case, a resident of Hennepin County, or of the City of Winona, would be liable to pay a double tax upon the same property, provided he made any of his debts payable in St. Paul, which is not only absurd but illegal. 12 Pick. 7; 17 Pick. 231; 4 Mass. 534.

H. J. Horn, and S. M. Flint, for plaintiff in error.

F. R. E. Cornell, for defendant in error.

ATWATER, J.

The City of St. Paul brought an action against the defendant to recover the sum of $800, assessed as a city tax against his personal property. The action was tried before the Hon. C. E. Vanderburgh, a jury trial having been waived, and the facts found by the court (so far as it is necessary to state them for a proper understanding of the case) were substantially as follows: That on the twentieth day of July, 1858, the City of St. Paul assessed $50,000 personal property against the defendant, and levied a tax on the same for city and ward purposes to the amount of $800; that the defendant was not, at the time of such assessment, nor at any time during the year 1858, a resident of said city nor of the State of Minnesota. That defendant had, during the year 1858, and at the time of such levy, money at interest in St. Paul, in the County of Ramsey, and in other parts of the state, secured by mortgage, payable in said city.

Upon the foregoing facts, the court found that defendant was not taxable by said city; that the assessment and levy against him was illegal; and that defendent was entitled to judgment for costs. From the judgment entered upon this decision the plaintiff brings its writ of error.

Section 3 of article 9 of the constitution provides, that "laws shall be passed taxing all moneys, credits, investments in bonds, stocks, joint stock companies or otherwise, and also all real and personal property, according to its true value in money." This provision is perhaps broad enough to authorize the legislature to levy a tax even upon the personal property, or rather upon the moneys and credits, of non-residents, and it will be necessary to examine the statute provisions to see whether the legislature has ever exercised, or attempted to exercise, the authority to tax the money of non-residents.

Chapter 9, p. 229, Comp. Stat., contains the general provisions in force in this State at the time in question, with regard to the assessment of property and levy of taxes thereon. Section five of said chapter provides, that "all lands shall be assessed in the district in which the same shall lie, and every person shall be assessed in the district where he resides, when the assessment is made for all real and personal property then owned by him within such district." To the same effect is sec. 2, art. 17 ch. 8, p. 198, Comp. Stat. (Township Organization Act of 1858.)

By section 9 of said chapter 9, it is also provided, that "every person, except as provided in the succeeding section, shall be assessed in the district in which he resides, when the assessment is made, for all taxable personal estate owned by him, including all such personal estate in his possession or under his control, as trustee, guardian, executor or administrator; and where there are two or more persons jointly in possession, or having the control of any such property in trust, the same may be assessed to either or all such persons, but it shall be assessed in the district where the same shall lie, if either of such persons reside in such district." And by section 10, it is further provided, that "all goods, wares, and merchandise, kept for sale in this territory, all stock employed in any of the mechanic arts, and all capital and machinery employed in any branch of manufactures, or other business, within this territory, owned by a corporation out of this territory, or by any person, whether residing in or out of the territory, shall be taxable in the district where the same may be, either to the owners thereof, or to the person who shall have charge of or be in possession of the same."

Now, these provisions expressly direct that each person shall be assessed "in the district in which he resides," when the assessment is made for all taxable personal estate owned by him, and no authority is found for taxing him elsewhere, so far as moneys and credits are concerned. It will not, of course, be contended that any tax can be levied without express provision of law therefor. The legislature has not seen fit to provide for the assessment of any kind of personal property, except that specified in section 10 above quoted, elsewhere than in the town or district in which the person to be taxed resides. The direction as to where personal property shall be assessed is repeated in more than one section; and even personal property held in trust is not permitted to be assessed in the district where the same shall lie, unless the trustees, executors, &c., or one of them, reside in such district. And the exception to the rule which is stated in the enumeration of certain kinds of personal property in section 10, which may be taxed in the district where the same may be, strengthens the belief that the omission of other kinds was not accidental, but ex industria. For the maxim here applies, expressio unius, exclusio alterius. The act of 1860 (Session Laws 1860, p. 11), in specifying what property is taxable, enumerates, among other kinds, "moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise, of persons residing herein." We think, therefore, the inference is clear that under the general laws of this state, regulating the assessment and taxation of personal property, no personal property of nonresidents is subject to assessment and taxation, except as specified in section 10 above quoted.

The statute of New York is in substance the same as ours with regard to the extent to which property is liable to taxation,...