Page images
PDF
EPUB
[blocks in formation]

But it is said that there is no person within the State required to return this property. We think it is the duty of the officers of the insurance company, under section 2744, to return the property, and that the place to return it is where the property is situated. This is clearly required by the terms of this section, and section 2735, making provision for the place of listing personal property, provides :

“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."

These bonds were the property of the corporation taxable under the statutes, and, at the time when they should have been listed, were held in the city of Columbus, Franklin County, Ohio, and should have been there returned.

It is further argued that to distrain the property of the company for the collection of these taxes would be a violation of the constitutional rights of the insurance company, and the taking of its property without due process of law. Section 1095 provides:

“Sec. 1095. [Overdue taxes may be collected by distress.]When taxes are past due and unpaid, as stated in the preceding section, the county treasurer, or his deputy, may distrain sufficient goods and chattels belonging to the person or persons charged with such taxes, if found within his county, to pay the taxes so remaining due and the costs that have accrued; and shall immediately proceed to advertise the same in three public places in the township where such property was taken, stating the time when, and the place where, such property will be sold; and if the taxes and costs which have accrued thereon are not paid before the day appointed for such sale, which shall be not less than ten days after the taking of such property, such treasurer, or his deputy, shall proceed to sell such prop

[blocks in formation]

erty at public vendue, or so much thereof as will be sufficient to pay said taxes and the costs of such distress and sale. (29 v. 291, $ 19; S. & C. 1586.)”

This section authorizes the distraint of goods to satisfy taxes lawfully levied against property within the county and State. This method of collecting taxes is one of the most ancient known to the law, and has frequently received the sanction of the courts. Murray's Lessees v. Hoboken Land &c. Co., 18 How. 272, 276; Springer v. United States, 102 U. S. 586; Cooley on Taxation, 302; Palmer v. McMahon, 133 U. S. 660.

There is nothing in the exemption of Government bonds from taxation which prevents them from being seized for taxes due upon unexempt property. We have held that the taxes were lawfully assessed. The statute authorizing a distraint gave the right to proceed against personal property within the jurisdiction of the State. The taxes were lawful, and the property belonging to a foreign corporation which could be seized within the authority of the State might be taken under this statute, and we do not perceive that any constitutional right of the company is violated by seizing its property under such circumstances. Bristol v. Washington County, 177 U. S. 133; Marye v. Baltimore & Ohio R. R. Co., 127 U. S. 117.

As to the right to assess taxes for the year 1903, it appears that these municipal bonds were withdrawn from the State some time before the return day, which is the day preceding the second Monday in April, and such withdrawal was in the exercise of a lawful right of the company to do, and other securities were substituted as provided by law. We do not think that the fact that it had bonds in the State for a time which were taxable justified the imposition of this tax, where the non-taxable securities were substituted before the return day.

As to the question of personal liability of the insurance company to judgment in an action brought to recover the amount of the taxes, we think the court should not have issued an injunction, as was done, against the prosecution of civil suits

[blocks in formation]

for this purpose. If there is no personal liability for these taxes—a point which we do not feel called upon to decideit is perfectly clear that if service could be had which would make a personal judgment proper, the company could set up its defense by answer in the action at law, and there is no necessity to resort to a court of equity for relief. It will be presumed, if the claim of the company is right, no personal judgment will be rendered against it, and if its theory of the controversy is correct no such judgment can be lawfully rendered. In such case the authorities are uniform that equity will not interfere by injunction, but leave the party to his defense at law. Revised Statutes of United States, $ 723; Insurance Company v. Bailey, 13 Wall. 616, 623; Grand Chute v. Winegar, 15 Wall. 373; Deweese v. Reinhard, 165 U. S. 386.

Upon the whole case we reach the conclusion that the Circuit Court was right in sustaining the demurrer so far as the bill averred the non-taxability of these bonds, or the right of the treasurer to proceed by distraint, and in overruling the demurrer as to the taxes for the year 1903; but, for the reasons stated, erred in enjoining the prosecution of a civil action seeking a personal judgment. In this view, the decree below will be reversed and the cause

remanded for further proceedings in conformity to this opinion. .

196 U. 8.

Opinions Per Curiam, Etc.

OPINIONS PER CURIAM, ETC., FROM DECEMBER 13,

1904, TO FEBRUARY 20, 1905.

No. 106. SAMUEL A. V. HARTWELL, APPELLANT, V. JOHN H. HAVIGHORST. Appeal from the Supreme Court of the Territory of Oklahoma. Argued December 15, 1904. Decided December 19, 1904. Per Curiam. Decree affirmed with costs. Johnson v. Towsley, 13 Wall. 72; Marquez v. Frisbie, 101 U. S. 473; Quinby v. Conlan, 104 U. S. 420; Gardner v. Bonestell, 180 U. S. 362; Potter v. Hall, 189 U. S. 292; Payne v. Robertson, 169 U. S. 323. Case reported below 11 Oklahoma, 189, and see Paine v. Foster, 9 Oklahoma, 213, 257; Acers v. Snyder, 8 Oklahoma, 659. Mr. William C. Prentiss for appellant. Mr. A. G. C. Bierer for appellee.

No. -, ORIGINAL. Ex parte: IN THE MATTER OF EDWARD E. BESSETTE, PETITIONER. Submitted December 19, 1904. Decided January 3, 1905. Motion for leave to file petition for a writ of mandamus denied. Mr. William Velpau Rooker for petitioner.

No. 314. THE UNITED STATES, APPELLANT, v. JOCK COE; No. 315. THE UNITED STATES, APPELLANT, v. BonG MENG; and No. 316. THE UNITED STATES, APPELLANT, v. Woo JOE. Appeals from the District Court of the United States for the Northern District of Ohio. Submitted January 3, 1905. Decided January 9, 1905. Per Curiam. Final orders and decrees reversed, and causes remanded for further proceedings in conformity to law. United States, Petitionor, 194 U. S. 194; Fong Yue Ting v. United States, 149 U. S. 698; Chin Bak

« PreviousContinue »