Irvin v. the New Orleans

• Decision Date: 30 November 1879
• Citation: 94 Ill. 105,1879 WL 8669,34 Am.Rep. 208
• Parties: ALEXANDER H. IRVINv.THE NEW ORLEANS, ST. LOUIS AND CHICAGO RAILROAD CO.
• Court: Illinois Supreme Court

94 Ill. 105

1879 WL 8669 (Ill.)

34 Am.Rep. 208

ALEXANDER H. IRVIN

v.THE NEW ORLEANS, ST. LOUIS AND CHICAGO RAILROAD CO.

Supreme Court of Illinois.

November Term, 1879.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court of the Fourth District; the Hon. TAZEWELL B. TANNER, presiding Justice, and Hon. JAMES C. ALLEN and Hon. GEORGE W. WALL, Justices.

Messrs. LINEGAR & LANSDEN, for the plaintiff in error:

A vessel is taxable at its situs which is her home port, and we ascertain what her home port is by finding at what port the vessel is enrolled or registered, the residence of her owner or owners, the places where she lies up, the residence of her officers. Citing sec. 4141, Rev. Stat. of the United States, and sec. 4178; St. Louis v. Ferry Co. 11 Wall. 423; Morgan v. Parham, 16 Id. 471; Wiley v. City of Pekin, 19 Ill. 160; City of New Albany v. Meekin, 3 Ind. 481; Burroughs on Taxation, sec. 46.

As to the taxation of personal property situate in a district, town, county or State other than that in which the owner resides, we cite the following authorities: Mills v. Thornton, 26 Ill. 300; Board of Supervisors v. Davenport, 40 Id. 197-209; Dunleith v. Reynolds, 53 Id. 45; First National Bank v. Smith, 65 Id. 44-54; Hoyt v. Comrs. of Taxes, 23 N. Y. 224; The People v. Commissioners of Taxes, 35 Id. 423-440; St. Louis v. Ferry Company, 40 Mo. 580; Alvany v. Powell, 2 Jones Eq. (N. C.) 51.

As to enjoining the collection of taxes, see Porter v. Rockford, Rock Island and St. Louis Railroad Co. 76 Ill. 561-596; Chicago, Burlington and Quincy Railroad Co. v. Cole, 75 Id. 591.

Messrs. GREEN & GILBERT, for the defendant in error:

Owners of steamboats are tenants in common, each owning a distinct though undivided interest; the admissions of one do not bind the other, and the undivided interest of each is a proper subject of assessment and taxation against each. Story on Partnership, secs. 417, 453; Conklin on Admiralty, vol. 1, ch. 10, p. 318; Cooley on Taxation, ch. 12, p. 272; Peabody v. County Commissioners, 10 Gray, 97; Fairbanks v. Kittredge, 24 Vt. 19.

A corporation actually and permanently resides within the State by whose law it is created. Ins. Co. v. Francis, 11 Wall. 216; St. Louis v. Ferry Co. 11 Id. 431; Hoyt v. Comrs. of Taxes, 23 N. Y. 224; Mineral Point Railroad Co. v. Keep, 22 Ill. 18.

To constitute an actual situs in this State the property must so abide in the jurisdiction as to become incorporated with and form a part of its personal property. 11 Wall. supra, and 16 Id. 476. Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

In the year 1874 a tax was levied amounting to $1155 by the authorities of Alexander county, upon property claimed to belong to the Mississippi Central Railroad Company. Of this tax $693 was levied on one-half interest of that company in the transfer steamboat “H. S. McComb;” $559.69 was assessed upon a superstructure for hoisting cars, sometimes called a “car-hoist,” and a third rail laid on the track of the Illinois Central Railroad Company's track in the city of Cairo, and $2.31 was assessed on office furniture of the first named company.

On the 3d day of July, 1874, the Mississippi Central Railroad Company and the New Orleans, Jackson and Great Northern Railroad Company were consolidated, and assumed the name of the New Orleans, St. Louis and Chicago Railroad Company. That company on the 8th day of February, 1875, filed a bill to enjoin the collection of all of this tax but the $2.31 levied on the office furniture, which was tendered to the collector before the suit was brought.

The terminus of the Mississippi Central Railroad Company was at Filmore, on the bank of the Ohio river, in Kentucky, opposite to the city of Cairo. The Illinois Central Railroad Company had its terminus in Cairo, at the bank of the river. Each road had an incline on its side of the river, from which cars were run upon the steamer H. S. McComb, and by it they were carried to the incline on the opposite bank, to go north or south over one or the other road as occasion might require. The steamer was so engaged in May, 1874, when assessed for taxation. It was built for that business, and was then owned by the Illinois Central and the Mississippi Central railroads, each having one-half interest in the vessel.

The tax of $693 was levied on the half of the vessel owned by the Mississippi Central Railroad Company for the year 1874. It is, by plaintiff in error, claimed that this one-half is liable and subject to taxation in this State, whilst on the other side it is claimed that it was not liable or subject to any tax whatever in this State, and not being subject to pay a tax, that equity has jurisdiction to restrain and should enjoin its payment.

If the proposition be true that this property is so situated that it was not subject to be assessed for taxation under our revenue laws, then a court of equity may afford relief. The first clause of the first section of that law provides that all real and personal property in this State shall be assessed and taxed. The only question then is, was this property in this State, within the meaning of this section, when it was assessed for taxation? This provision of the law does not contemplate the assessment of personal property that is passing through, or is in the State for temporary purposes only. It could not be held that the goods and merchandize of a citizen of Iowa, passing from an Eastern city, by rail, through this State to his home in Iowa, on the first day of May in any year, could be legally assessed for taxation. Although in the State on the day the assessor is required to list all personal property for taxation, and coming within the letter of the statute, it would clearly be contrary to its spirit. The intention of the law-makers was only to subject property to taxation that is more permanently in the State at the time when required to be listed. But the extent of that permanency it would, under many circumstances, be difficult to define. It is, however, impracticable to lay down any rule that shall govern in all cases. Its ownership, and the uses for which it is designed, and the circumstances of its being in the State, are so various that it can not be embraced in any general rule.

Whilst the situs of personal property is, under many circumstances, considered by the law as being that of its owner, such is not the uniform rule. Under some circumstances it has for some purposes a different situs from that of the owner, and such is the case in regard to taxation. Where personal property is permanently located at a particular place, it is liable to be listed there.

The boat was registered in Cairo, and when not in use it laid up in that place. The hands who operated the boat resided there, and the company had its business office in the city,--thus incontestibly showing that its home port was Cairo. Against this there are the simple facts that as to the corporation owning the half that was taxed, it was one of several corporations chartered by the statutes of three other States, but consolidated and acting as one company, and when the boat was in use it ran to the opposite shore of the river, in Kentucky,--one of the States granting a charter for the companies forming the consolidated corporation. These, undoubtedly, are important facts in determining the situs of this vessel for taxation.

We presume no one can or will question the fact that the half of the vessel belonging to the Illinois Central Railroad Company is liable to taxation in this State. That half is owned by a corporation in this State, the vessel is registered in this State, and when not in use it lies up in this State, and Cairo would seem to be its home port, and it is permanently located in this State. It is true, that when in use it plys between Cairo and Filmore, but still Cairo is, unquestionably, the home port of the vessel.

Both parties have referred to St. Louis v. The Ferry Company, 11 Wallace, U. S. R. 423, as sustaining their position. In that case the ferry company was incorporated by the laws of this State, but had its principal office in St. Louis, Missouri....