Eoff v. Kennefick-Hammond Co.

• Decision Date: 23 July 1906
• Citation: 96 S.W. 986
• Parties: EOFF, Tax Collector, v. KENNEFICK-HAMMOND CO.
• Court: Arkansas Supreme Court

96 S.W. 986

EOFF, Tax Collector, v. KENNEFICK-HAMMOND CO.

Supreme Court of Arkansas.

July 23, 1906.

Rehearing Denied October 8, 1906.

Appeal from Boone Chancery Court; T. H. Humphreys, Chancellor.

Suit by the Kennefick-Hammond Company against D. A. Eoff, as collector of taxes of Boone county, to restrain the collection of taxes levied on certain personal property. From a judgment for plaintiff, defendant appeals. Reversed. Complaint dismissed.

G. J. Crump and Garner Fraser, for appellant. Pace & Pace, for appellee.

BATTLE, J.

The assessor of Boone county listed and assessed for taxation for 1903 the following property of Kennefick-Hammond Company: 14 horses, 88 mules, 75 wagons, 17 boilers, 2 light plants, 2 air compressors, harness, and blacksmith tools, valuing the boilers, light plants, air compressors, harness, and blacksmith tools, in the aggregate, at $20,670. This property was situated in Boone county on the first Monday in June, 1903 — how long before and how long after does not appear. It was used by Kennefick-Hammond Company in the construction of a roadbed for a railroad through a portion of Boone county, about 15 miles in length. How long it required to complete the roadbed was not shown at the hearing of this cause. The taxes of 1903 were levied upon it, and the collector of Boone county was proceeding to collect the same when he was restrained from so doing by an order made by the chancellor of the Boone chancery court, upon application of Kennefick-Hammond Company, which was afterwards made perpetual by the court.

Kennefick-Hammond Company was a partnership composed of William Kennefick and F. S. Hammond, and they were citizens and residents of the state of Missouri before, on, and after the first Monday in June, 1903.

In Pullman's Palace Car Company v. Commonwealth of Pennsylvania, 141 U. S. 18, 11 Sup. Ct. 876, 35 L. Ed. 613, Mr. Justice Gray, speaking for the court, said:

"No general principles of law are better settled, or more fundamental, than that the legislative power of every state extends to all property within its borders, and that only so far as the comity of that state allows can such property be affected by the law of any other state. The old rule, expressed in the maxim `Mobilia sequuntur personam,' by which personal property was regarded as subject to the law of the owner's domicile, grew up in the Middle Ages, when movable property consisted chiefly of gold and jewels, which could be easily carried by the owner from place to place, or secreted in spots known only to himself. In modern times, since the great increase in amount and variety of personal property, not immediately connected with the person of the owner that rule has yielded more and more to the lex situs, the law of the place, where the property is kept and used. * * *

"For the purposes of taxation, as has been repeatedly affirmed by this court, personal property may be separated from its owner, and may be taxed, on its account, at the place where it is, although not the place of his own domicile, and even if he is not a citizen or resident of the state which imposes the tax."

The statutes of this state provide that "all property, whether real or personal, in this state * * * shall be subject to taxation," except property exempted by the Constitution, of which the property in question is not a part. Personal property must be assessed in the name of the person who was the owner on the first Monday in June in the year in which the assessment was made. Kirby's Dig. §§ 6873, 6913. And in all cases in which it is necessary for the assessor, "in consequence of the sickness or absence of the person whose duty it is to make out a statement of personal property" or his refusal to do so "to ascertain the several items and the value thereof," the assessor may do so and make return thereof from the best information he can get. Kirby's Dig. §§ 6966, 6968.

But plaintiffs insist that the property was in the state, at the time it was assessed, temporarily; that it had not been incorporated in and become a part of the property of the state; had not gained a situs here, but was in transitu, and not subject to taxation in this state. Tangible personal property of a nonresident, in transit, is not subject to local taxation in the state in which it may be temporarily. But when does property cease to be in transit and become of such premanency as will justify taxation in its new situs? It cannot always be in transit.

In Kelley v. Rhodes (Wyo.) 51 Pac. 593, 39 L. R. A. 594, 75 Am. St. Rep. 904, the "plaintiff, who was a resident and citizen of the state of Kansas, was the owner of certain sheep, numbering about 10,000 head, which, on or about October 29, 1895, were in the county of Laramie, in the state of Wyoming, in charge of an agent, who was driving and transporting them through the state of Wyoming from Utah to Nebraska. In driving the sheep it was the practice to permit them to spread out at times in the neighborhood of a quarter of a mile, and while being so driven to graze over land of that width," and they were maintained solely in that way. They were driven across Wyoming for the purpose of shipment, and were not brought into the state for the purpose of being maintained permanently therein. The time consumed in driving the sheep through Wyoming was from six to eight weeks, and the distance traveled was about 500 miles. "For shipment purposes, it was not necessary that the sheep should be driven into Wyoming, and the railroad over which they were shipped could be reached from the point from which they were first driven by traveling a less distance than was required to drive them to any point" in Wyoming. The question was, were the sheep subject to taxation while in Wyoming? The Supreme Court of Wyoming held that they were. The court said: "We are of the opinion, therefore, that, in determining the purpose and the situs, the course and method of travel is a proper subject and one of the elements for consideration. We do not dispute the proposition that an owner of live stock, if not otherwise disobedient to the law and observant of the police regulations of the state, has the right to transport them to market by driving on foot as well as by rail. Strictly speaking, they will be in transit by the one method as much as by the other. If, however, the purpose of such owner...