Appeal from district court, Dallas county; J. J. Eckford, Judge.
FLY, J.
Appellant instituted this suit to restrain the collection of certain taxes levied by the city on certain notes belonging to appellant. Exceptions to the petition were filed by appellee and sustained by the court. The petition, after the formal allegations as to residence, etc., was as follows: "That in the year 1896, after obtaining its permit to do business in the said state of Texas, it established an office or headquarters in the city of Dallas, in said state, from which to direct and manage the business which it at the time undertook to establish and conduct. That it employed a number of solicitors and salesmen to canvass, with the object of selling goods of its manufacture whenever and wherever sales for the same could be found. That it has kept and maintained in charge of its office in the said city of Dallas a manager, bookkeeper, stenographer, and other employés necessary for the dispatch and management of its business. That orders for the sale of its goods are taken in every part of the state, and reported to the manager in charge at the city of Dallas. That a repository or store has been kept and maintained at the said city of Dallas, in which a stock of goods has been kept for sale, and that from such stock orders obtained by its salesmen are often filled. That such orders are frequently forwarded by the manager in charge at the said city of Dallas to the office of plaintiff in the city of St. Louis, where the same are filled, and goods shipped either from the factory in the state of Indiana, or from the warehouse of the plaintiff in the city of St. Louis, to the point of sale in the said state of Texas at which said goods are to be delivered. Plaintiff states: That sales are occasionally made in the city of Dallas, but that the chief trade which the plaintiff has established in the said state has been through the instrumentality and services of its salesmen in the state at large outside the city of Dallas, to which its salesmen are sent for the purpose of disposing of its goods. That the stock in trade has been regularly assessed for the municipal taxes of the city of Dallas since the beginning of its business in said city in the year 1896, and that its said assessments have been regularly paid as hereinafter stated. That its sales throughout the state are usually made upon credit, and that notes are taken for the purchase of its goods, usually secured by a chattel mortgage upon the instrument sold, and that said notes are always made payable at the bank nearest and most convenient to the makers thereof, for the accommodation both of the plaintiff in collecting the same, and of its customers in making payment. That said notes when so taken have usually been sent to the manager in charge of the plaintiff's business at the said city of Dallas, where they are kept for collection. That schedules of said notes are furnished to the plaintiff's office in the city of St. Louis, from which place directions are always given as to the management and collection thereof, and that in no instance is it the duty or privilege of the manager in the city of Dallas to withhold the proceeds from the collection of said notes, to use for any purpose other than paying the current expenses of the plaintiff's business in said city of Dallas, consisting of rents, clerks' and employés' hire, but the invariable order and instruction has been to remit all sums so collected to the plaintiff's office in the city of St. Louis. That the notes so taken as aforesaid are held, when at all, for collection and remittance only, and never for reinvestment. That no goods are purchased by the plaintiff's branch house or the manager thereof for its stock in trade, but such goods so offered for sale have been supplied from its factories and from the stock purchased by the management and officers in the city of St. Louis, and shipped to Dallas for sale. That it has been the aim and purpose and the business of the plaintiff to establish an agency in the city of Dallas, from which its said goods are in part sold, and from which to manage and conduct its said business in the state of Texas; the object being to sell its goods, and to receive and collect from such sales, and to use the sums derived therefrom in the management of its business in the said city of St. Louis. That in the month of January, 1898, one J. H. Truesdale was its general manager and in charge of its property and effects in the said city of Dallas. That on the 1st day of said month its stock of merchandise, fixtures, and miscellaneous property was reasonably worth $5,200, and that it was assessed for taxes by the defendant city of Dallas at said sum by its assessor, for municipal purposes. That on said date the plaintiff was the owner of a large number of notes which had been executed by the purchasers of its goods at sales by its agents, solicitors, and traveling salesmen in various sections of the state of Texas, and payable at the banks in the various localities at which its said goods were purchased, amounting to about the sum of $30,000, and of the probable value of $22,500. That said notes had
been executed in large part for goods which had been shipped directly from the plaintiff's factory in the state of Indiana and from the plaintiff's warehouses in the city of St. Louis to the purchaser thereof, on orders obtained by its traveling salesmen and solicitors, and in part for goods which had been shipped on such orders from its repository or warehouse in the city of Dallas. That said notes were at the dates aforesaid in the possession of its manager for the purpose of collection and remittance to the plaintiff in said city of St. Louis only, and for no other purpose, except that said manager paid the rents, clerks' hire, and salesmen from such funds, when necessary, and that no part of said notes were kept or retained for any other purpose than collection and remittance. Plaintiff alleges, however, that the defendant city of Dallas, by its assessor, servants, and employés, caused the same to be assessed for the taxes of said city for the said year 1898, and fixed and established as the amount of taxes for the notes aforesaid for said year the sum of $337.50. Plaintiff avers that the said notes were not liable to be assessed for taxes by said defendant, but that the same were held, owned, and controlled by the plaintiff in the city of St. Louis, and were liable to be assessed for all municipal, state, and other taxes at the home and residence of the plaintiff, to wit, in the said city of St. Louis, state of Missouri, and not elsewhere; that the total assessments for municipal purposes of plaintiff's said property above mentioned by the said defendant city of Dallas for said year was $415.50; that $78 of said sum was for the stock of merchandise, fixtures, and miscellaneous property belonging to the plaintiff as above stated, and that $337.50 of said sum was assessed for the notes belonging to the plaintiff as above stated, and executed by makers largely without the city of Dallas,—few of the same, if any, having been executed by residents of said city, as plaintiff believes and now avers. Plaintiff states that it has always been ready and willing to pay the taxes assessed against its stock of goods, fixtures, etc., and has repeatedly offered to pay that portion of its said assessments, and now brings into court and tenders to the said defendant city of Dallas the said sum of $78 assessed against its said stock, fixtures, and miscellaneous property; but said defendant, by its collector, Ford House, has refused, and now refuses, to accept the same in payment of its said taxes unless plaintiff will pay the further sum of $377.50 assessed for its notes aforesaid, which plaintiff avers are not liable to be assessed by the said defendant city of Dallas for any purpose; that it has protested against the assessments of its said notes, and has refused to pay the taxes claimed thereon, and still refuses so to do; that the said defendant Ford House threatens to seize and take into his possession the personal property and stock in trade of the said plaintiff, or a sufficient amount thereof to pay the entire sum claimed by him for taxes of 1898, including the sum assessed on account of said notes; that great and irreparable injury will be done the plaintiff by the threatened unjust and illegal action of the said defendant Ford House, in seizing and taking said property and selling the same, unless he is enjoined and restrained by the order and direction of this honorable court from so doing." It is provided in the charter of Dallas, under which the assessment was made, that "all persons or corporations owning or holding personal property or real estate in the city of Dallas on the 1st day of January of each year shall be liable for all municipal taxes levied hereon for the fiscal year beginning next following April." It is also provided in the charter that the city shall have power to levy such a tax on the property of corporations as is provided by state law.
There is but one assignment of error, which brings in review the action of the district court in sustaining exceptions to the petition; and the proposition propounded is that "intangible personal property, such as credits, are taxable only at the place of residence of the owner, without regard to where they are kept or deposited, and equally without regard to where they were earned, or the place of the debtor." There has been some confusion among American decisions as to whether intangible property, like...
