State ex rel. Dunnica v. Cnty. Court of Howard Cnty.

• Decision Date: 30 April 1879
• Citation: 69 Mo. 454
• Parties: THE STATE ex rel. DUNNICA, Appellant, v. THE COUNTY COURT OF HOWARD COUNTY.
• Court: Missouri Supreme Court

69 Mo. 454

THE STATE ex rel. DUNNICA, Appellant,

v.THE COUNTY COURT OF HOWARD COUNTY.

Supreme Court of Missouri.

April Term, 1879.

Appeal from Howard Circuit Court.--HON. G. H. BURCKHARTT, Judge.

Wash Adams for Appellant.

For many purposes, personal property, by a fiction of law, is said to follow the person. But in regard to all proceedings in rem, such as administration and property taxation, which is essentially a proceeding in rem, this fiction must give way to the truth, and the real situs of personal chattels or choses in possession is where they are actually located, and can be seen and handled notwithstanding their owner is a non-resident. It is well settled, that where the owner resides in one State, and his personal chattels have actual situs in another State, he cannot be taxed for such property at his residence. Burroughs on Taxation, 40. Negotiable municipal bonds are in the nature of personal chattels in possession. They pass from hand to hand by delivery, and if stolen a good title can be passed by the thief to a bona fide purchaser. Wherever their real situs is, that is the State where alone they are liable to taxation and administration. Burroughs on Taxation, 52, 53; State Tax on Foreign-held Bonds, 15 Wall. (U. S.) 323; Trowbridge v. Commissioner, 4 Hun (N. Y.) 595; Attorney General v. Bouwens, 4 M. & W. 171; Varner v. Calhoun, 48 Ala. 178; Attorney General v. Hope, 1 C. M. & R. 530; 8 Bligh 44; British Com. Life Ins. Co. v. Commissioners, 40 N. Y. (1 Keyes) 303; People v. Home Ins. Co., 29 Cal. 533; Attorney General v. Dimond, 1 Cr. & Jer. 370.

Major & Shafroth with R. B. Caples for respondents.

The situs of personal property, such as the bonds in question, follows the domicile of the owner, and is taxable there. Cooley on Taxation, 269, 270; Hannibal & St. Jo. R. R. Co. v. State Board, 64 Mo. 294; Parker Mills v. Com. of Taxes, 23 N. Y. 242; People ex rel. P. M. S. Co. v. Com. of Taxes, 64 N. Y. 541; Railroad Co. v. Pennsylvania, 15 Wall. 282; Railroad Co. v. Jackson, 7 Wall. 262. The exceptions to this proposition are in instances where the personal property is invested in loans, or some business enterprise in a State different from the residence of the owner. In such cases the property is taxed at the place of investment, without reference to the residence of the owner or holder of the property. People v. Home Ins. Co., 29 Cal. 533; Catlin v. Hull, 21 Vt. 152; Hoyt v. Commissioners, 23 N. Y. 224; People v. Gardner, 51 Barb. 352; St. Louis v. Wiggins Ferry Co., 40 Mo. 580; Pacific R. R. Co. v. Cass County, 53 Mo. 17; State ex rel. Taylor v. St. Louis Co. Ct., 47 Mo. 594; Curtis v. Ward, 58 Mo. 295. The relator's bonds should be taxed somewhere. Under the ruling in People ex rel. Bank v. Commr. of Taxes, 59 N. Y. 40, they are clearly not taxable in that State.

NAPTON, J.

Upon a certiorari issued at the instance of W. F. Dunnica, requiring certain proceedings by the board of equalization and the county court to be sent up to the circuit court for review, it appeared that the assessor of Howard county notified the board of equalization that Dunnica had falsely and fraudulently refused to give a correct list of his personal property. In the investigation of this charge the board found that Dunnica had twenty-two bonds of Howard county, $1,000 each, and prior to such assessment had sent them to New York; that they were taxable in Howard, and, therefore, raised his assessment by $17,600, and by way of penalty for furnishing such false list, trebled this sum, and ordered him to be taxed on $52,800. The county court sanctioned this act of the board.

In the circuit court, on the return of the certiorari, it appeared that Dunnica testified before the board that prior to the passage of the Revenue Act of 1872, he sent twenty-two Howard county bonds, belonging to his wife, of the value of $17,600, to the City of New York, in the State of New York, to the Safe Deposit Company of New York, being the bonds aforesaid, which company kept a safe for the purpose of safely keeping bonds of this character, payable to bearer; that he paid one dollar per thousand for the safe keeping of said bonds; that the said bonds were in New York on the 1st day of August, 1875; that they were not sent out of the State of Missouri to avoid taxation, but for safety; that he had made no effort to conceal the fact that his wife held the bonds; that he had consulted counsel and was advised by such counsel that said bonds were not taxable or subject to taxation in the State of Missouri; that he did not believe the bonds were taxable, by law, in this State, and that he had taken the oath required by law; that he had sent no property or bonds out of this State to avoid taxation. The board of equalization, without hearing other evidence, proceeded to add to the assessment list of relator the bonds found by them and shown by relator to have been in the State of New York on the 1st day of August, 1875, placing said valuation at the sum of $17,600. The circuit court quashed the certiorari, thereby sustaining the action of the county court and the board of equalization.

It will thus be seen that the only question involved is, whether these municipal bonds were taxable in...