Western Assur. Co. v. Halliday

• Decision Date: 09 January 1903
• Docket Number: 974.
• Citation: 127 F. 830
• Parties: WESTERN ASSUR. CO. OF TORONTO v. HALLIDAY et al.
• Court: U.S. District Court — Southern District of Ohio

127 F. 830

WESTERN ASSUR. CO. OF TORONTO v. HALLIDAY et al.

No. 974.

United States Circuit Court, S.D. Ohio, Eastern Division.

January 9, 1903

J. H Cabell, for complainant.

Ross &amp Davis and E. L. Taylor, Jr., for respondents.

THOMPSON District Judge.

The complainant is a foreign fire insurance company doing business in Ohio. As a condition upon which it is permitted to do business in Ohio, and in compliance with the provisions of section 3660 of the Revised Statutes of 1890 of Ohio, it deposited, and has now and during the years 1895, 1896, 1897 1898, 1899, and 1900 had on deposit with the Superintendent of Insurance of Ohio bonds of the par value of $100,000, one half of which were issued and sold by the city of Columbus, Ohio, and the other half were issued and sold by the city of Toledo, Ohio. The defendant William H. Halliday is auditor of Franklin county, Ohio, and the defendant Nelson A. Sims is the treasurer of said county. Halliday, as such auditor, claiming to act in pursuance of the laws of Ohio, and upon the ground that the above-mentioned bonds are taxable property within the state has assessed them for taxation in Franklin county, Ohio, for the years 1895, 1896, 1897, 1898, 1899, and 1900, and has levied taxes thereon for said years, aggregating the sum of $16,350, which has been certified to Sims, as such treasurer, for collection, and which Sims, as such treasurer, will proceed to collect unless restrained by the decree of this court.

Taxable property is described and defined by section 2731 of the Revised Statutes of 1890 of Ohio, as follows:

'Sec. 2731. All property whether real or personal in this state, and whether belonging to individuals or corporations; and all moneys, credits, investments in bonds, stocks, or otherwise, of persons residing in this state, shall be subject to taxation, except only such as may be expressly exempted therefrom; and such property, moneys, credits, and investments shall be entered on the list of taxable property as prescribed in this title; all tracts of land set apart for school or ministerial purposes, and sold by and under authority of law, and all lands which shall be hereafter sold by the United States, shall be subject to taxation as other lands in this state immediately after such sale; but school or ministerial lands shall not be sold for taxes until the purchase money therefor shall be fully paid, but shall be returned as delinquent, and continue on the duplicate, with the taxes of each year charged thereon, and added to the tax and penalty due when the same became delinquent, until payment be made by the purchaser or his assigns, of such purchase money, with the tax and penalty, or the lands resold by the county auditor, pursuant to the laws now or hereafter in force for the sale of such lands. (56 v. 175, Sec. 1; 71 v. 96, Sec. 78; S. & C. 1438 (S. & S. 757).)'

For the purposes of taxation personal property and investments in bonds are defined by section 2730 of the Revised Statutes of 1890 of Ohio, as follows:

'The term 'investments in bonds' shall be held to mean and include all moneys in bonds, or certificates of indebtedness, or other evidences of indebtedness of whatever kind, whether issued by incorporated or unincorporated companies, towns, cities, villages, townships, counties, states, or other incorporations, or by the United States, held by persons residing in this state, whether for themselves or others. * * * The term 'personal property' shall be held to mean and include, first, every tangible thing being the subject of ownership whether animate or inanimate, other than money, and not forming part of any parcel of real property, as hereinbefore defined; second, the capital stock, undivided profits, and all other means not forming part of the capital stock of every company, whether incorporated or unincorporated, and every share, portion or interest in such stock, profits, or means, by whatsoever name the same may be designated, inclusive of every share or portion, right, or interest, either legal or equitable, in and to every ship, vessel, or boat, of whatsoever, name or description, used or designed to be used either exclusively or partially in navigating any of the waters within or bordering on this state, whether such ship, vessel, or boat shall be within the jurisdiction of this state or elsewhere, and whether the same shall have been enrolled, registered, or licensed at any collectors office, or within any collection district in this state or not; third, the money loaned on pledge or mortgage of real estate, although a deed or other instrument may have been given for the same, if between the parties the same is considered as security merely. * * * ' And the general rule as to who shall list and how they shall list personal property for taxation is prescribed by sections 2734 and 2735 of the Revised Statutes of 1890 of Ohio as follows:

'Sec. 2734. Every person of full age and sound mind shall list the personal property of which he is the owner, and all moneys in his possession, all moneys invested, loaned or otherwise controlled by him as agent or attorney, or on account of any other person or persons, company or corporation whatsoever, and all moneys deposited subject to his order, check, or draft, and all credits due or owing from any person or persons, body corporate or politic, whether in or out of such county; all money loaned on pledge or mortgage of real estate, although a deed or other instrument may have been given for the same, if between the parties the same is considered as security merely; the property of every ward shall be listed by his guardian, of every minor child, idiot, or lunatic having no guardian, by his father, if living; if not, by his mother, if living; and if neither father nor mother be living, by the person having such property in charge; of every wife by her husband, if of sound mind, if not, by herself; of every person for whose benefit property is held in trust, by the trustees; of every estate of a deceased person, by his executor or administrator; of corporations whose assets are in the hands of receivers, by such receivers; of every company, firm or corporation, by the president or principal accounting officer, partner or agent thereof; and all surplus or undivided profits held by any society for savings or bank having no capital stock, by the president accounting officer. (62 v. 105, Sec. 4; 75 v. 441, Sec. 1; 76 v. 28, Sec. 2; S. & S. 756 (S. & C. 1441).)

'Sec. 2735. Every person required to list property on behalf of others shall list the same in the same township, city, or village, in which he would be required to list it if such property were his own; but he shall list it separately from his own, specifying in each case the name of the person, estate, company, or corporation, to whom it belongs; all merchants and manufacturers' stock, and all personal property upon farms shall be listed in the township, city, or village, in which the same may be situated; and all other personal property, moneys, credits, and investments, except as otherwise specially provided, shall be listed in the township, city, or village in which the person to be charged with taxes thereon may reside at the time of the listing thereof, if such person reside within the county where the same are listed, and if not, then in the township, city or village where the property is when listed. (62 v. 105, Sec. 4; S. & S. 756.)'

Section 2746 further provides:

'Personal property of every description, moneys and credits, investments in bonds, stocks, joint stock companies, or otherwise, shall be listed in the name of the person who was the owner thereof on the day preceding the second Monday of April in each year; but no person shall be required to list for taxation any share or shares of the capital stock of any company, the capital stock of which is taxed in the name of such company.'

How certain corporations shall list their property is directed by section 2744 of the Revised Statutes of Ohio as follows:

'Sec. 2744. The president, secretary, and principal accounting officer of every canal or slackwater navigation, company, turnpike company, plank-road company, bridge company, insurance company, telegraph company, or other joint stock company, except banking or other corporations whose taxation is specifically provided for, for whatever purpose they may have been created, whether incorporated by any law of this state or not, shall list for taxation, verified by the oath of the person so listing, all the personal property, which shall be held to include all such real estate as is necessary to the daily operations of the company, moneys and credits of such company or corporation within the state, at the actual value in money, in manner following: In all cases return shall be made to the several auditors of the respective counties where such property may be situated, together with a statement of the amount of said property which is situated in each township, village, city, or ward therein. The value of all movable property shall be added to the stationary and fixed property and real estate, and apportioned to such wards, cities, villages or townships pro rata, in proportion to the value of the real estate and fixed in said ward, village, city or township. It shall be the duty of the accounting officer aforesaid to make return to the auditor of state during the month of May of each year of the aggregate amount of all property by him returned to the several auditors of the respective counties in which the same may be located. It shall be the duty of the auditor of each county, on or before the first Monday of May annually, to furnish the aforesaid president, secretary, principal accounting officer, or agent, the

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