M'Cormick v. Fitch

• Decision Date: 01 January 1869
• Citation: M'Cormick v. Fitch, 14 Minn. 185 (Minn. 1869)
• Parties: C. H. McCORMICK and others v. EDWIN S. FITCH.
• Court: Minnesota Supreme Court

Page 185

14 Minn. 185

C. H. McCORMICK and others

v. EDWIN S. FITCH.

Supreme Court of Minnesota.

Appeal by plaintiff from a judgment of the district court, Dakota county.

Defendant had judgment below.

Clagett & Crosby and Seagrave Smith, for appellants.

Smith & Gilman and Judson & Huddleston, for respondent.

McMILLAN, J.

This action is brought by the plaintiffs to recover damages for the alleged wrongful taking of certain personal property. The defendant justifies the taking as collector of taxes.

It appears, from the finding of the court, at the times the property was listed and the taxes assessed the plaintiffs were non-residents of this state, but resided at Chicago, in the state of Illinois. The court also finds, among other things, "that at the time of listing by Etheridge, in 1864, the plaintiffs had property in Hastings subject to taxation, consisting of machinery manufactured at the city of Chicago, Illinois, and sent to Hastings for sale at that time. Rhodes, the agent of plaintiffs, was called on in 1865 to list the property of plaintiffs, in said city of Hastings. They had personal property in said city of Hastings, of the description aforesaid, and manufactured and sent as above stated, and that the proceeds of sale made by their agents at Hastings were forwarded to the plaintiffs at Chicago, Illinois, and that they were not reinvested in the state of Minnesota, and that the property of plaintiffs, listed and taxed in Hastings for the respective years 1864 and 1865, had been listed and taxed in Chicago, Illinois, for each year, before sent to Hastings, and the taxes afterwards paid in Chicago, and that the greater part of the machinery sent to Hastings was ordered by plaintiffs' agent after having contracted to sell the same to farmers, and that machinery was sent to agents, and payments to be received by them before delivery, and that there was some machinery at Hastings belonging to plaintiffs when assessors called on agent for list of property, both in 1864 and 1865, which was not contracted for sale by them at the time."

We think there is sufficient evidence in this case to sustain the finding of the court, and that upon this state of facts the property, under our law, was taxable.

It is provided by section 1 of chapter 1, Laws 1860:

"That all property, whether real or personal, in this state, all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise, of persons residing herein; the property of corporations now existing or hereafter created, and the property of all banks or banking companies now existing or hereafter created, and of all bankers, except such as are hereafter expressly exempted, shall be subject to taxation; and such property, moneys, credits, investments in bonds, joint-stock companies, or otherwise, or the value thereof, shall be entered in the list of taxable property for that purpose in the manner prescribed by this act."

Section 11 of the same act is as follows:

"Every person that shall own or have in his possession or subject to his control any personal property within this state, with authority to sell the same, which shall have been purchased either in or out of this state with a view to being sold at an advanced price or profit, or which shall have been consigned to him from any place out of this state for the purpose of being sold at any place within this state, shall be held to be a merchant; and when he shall be by this act required to make out and deliver to the assessor a statement of his other personal property, he shall state the value of such property appertaining to his business as a merchant; and in estimating the value thereof he shall take as a criterion the average value of all such articles of personal property which he shall have had from time to time in his possession or under his control during the year next previous to the time of making such statement, if so long he shall have been engaged in business; and if not, then during such time as he shall have been so engaged; and the average shall be made up by taking the amount in value on hand, as nearly as may be, in each month of the next preceding year in which the person making such statement shall have been engaged in business, adding together such amounts, and dividing the aggregate amount thereof by the number of months that the person making the statement may have been in business during the preceding year: provided, that no consignee shall be required to list for taxation the value of any property, the product of this state, nor the value of any property consigned to him from any other place for the sole purpose of being stored or forwarded: provided, he shall in either case have no interest in such property, or any profit to be derived from its sale; and the word `person,' as used in this and the succeeding sections, shall be held to mean and include firm, company, and incorporation."

It would seem very evident that under these sections that portion of the plaintiffs' property which was sent to their agents in this state for sale, and not merely for the purpose of being stored or forwarded, was liable to taxation.

It appears that the board of commissioners levied the following taxes for the year 1864: For ordinary county expenses, three mills on the dollar; for the support of the poor, three mills; for maintaining common schools, two mills; for the payment of outstanding interest-bearing county orders other than poor orders, one-half mill; for principal and interest on county bonds, four mills; for repairing county roads and bridges, one mill. And for the year 1865 the following taxes were levied: County tax, three mills; poor tax, three mills; to redeem interest-bearing orders, three mills; road and bridge fund, one-half mill; general school fund, two mills.

It is urged by the appellants that the commissioners were prohibited from levying a tax exceeding three mills on the dollar of the taxable property of the county for county purpurposes, unless first authorized to do so by a vote of the people. To support this position the appellants rely upon section 2, c. 6, Laws 1861; Sess. Laws 1861, p. 47. This section is amendatory of section 22, art. 2, c. 15, Laws 1860. An inspection of the two acts clearly shows that the intention of the act of 1861 was to dispense with certain restrictions imposed by the act of 1860, and to enlarge the power of county commissioners. We think the "county purposes" mentioned in this act of 1861, for which the maximum tax is limited in the counties therein specified to three mills on the dollar, without a vote of the people, includes only the ordinary expenses of the county. The payment of the county debt, or the interest thereon, is not within these ordinary expenses; nor is the expenditure authorized by the act of an amount not exceeding $1,000 for extraordinary purposes. The amounts necessary to be raised for these latter purposes, therefore, are not included within the three mills limited by that act, but the necessary amount of tax to meet these purposes may be levied by the commissioners under the general power contained in the first clause of this section. At the time of the passage of the act of 1861, and the act of which it is amendatory, there was special provision made for the collection of taxes for roads and bridges by the several townships. Sess. Laws 1860, c. 4, art. 1, § 8.

By the act of March 1, 1862, giving to the county commissioners a general supervision of county roads, and authorizing them to expend an amount not exceeding $1,000, it is provided that any money appropriated by the commissioners under the act shall be considered as part of the $1,000 by law allowed to be expended for extraordinary purposes; for this amount, therefore, a tax may be levied beyond the three mills. There is nothing in this case to show that the amount of road tax levied is not within the provisions of the law. The levy of a poor tax is specifically authorized by a law subsequent to the act of 1861. Laws 1864, c. 16, § 18, p. 57. The school tax is a district and not a county tax, and is specifically authorized by chapter 11, Laws 1861, §§ 37-9.

By section 77, c. 1, Laws 1860, p. 41, if any county has a floating debt in county orders, and the amount authorized by the existing laws to be levied for county purposes is insufficient to defray the expenses of said county and pay the interest on their debt, the commissioners may levy a sufficient amount to pay the interest on their debt, which tax, when collected, shall be applied to paying the interest on the county debt, and no other purpose.

By chapter 27 of the Special Laws of 1862, express authority is conferred upon the county of Dakota to issue bonds, etc., and to include in the general tax an amount sufficient to pay the interest on such bonds as may be issued; and when any principal is about to become due, a sufficient amount to pay such principal. Sess. Laws 1862, p. 264. And at the extra session of 1862 the legislature passed an act legalizing the action of the board of commissioners of the county of Dakota in issuing bonds for the payment of bounties to volunteers, and to provide for the levy of taxes to meet the interest and principal on the same. Extra Sess. Laws 1862, p. 70; Sp. Laws, c. 2.

It appears that there was included in the tax sales of 1864 and 1865, respectively, a war bounty tax levied by the city of Hastings. The appellants object that the city of Hastings was not authorized to pay war bounties, and the tax for that purpose was illegal and void.

By chapter 11, Gen. Laws 1864, which is an...