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Since such barbarous times generations have of consignor, who agreed with him and was to succeeded generations, and each one has increased pay bim.' The question was squarely made in that in enlightened thought, before which the barsh case, and the court reached the conclusion above doctrines and unreasonable rules of the common indicated. Lord Mansfield said, in the opinion law have fallen. In many cases when the courts which he rendered in that case: *This is an could not refuse to apply them, some of the leg action upon the agreement between the plaintiffs islatures of the several States in this Union have and the carrier. The plaintiffs were to pay him. by wise enactments destroyed them. Relics of Therefore the action is properly brought by the barbarism in the forms of law cannot stand before persons who agreed with him and were to pay the progress of enlightened ages. Kentucky has him.' This decision, as above stated, was unikept pace with the age, and has given to the wife formly adhered to by the English courts, and, the right to sue and be sued as a single woman. there being in this State no statute law in conflict Section 2128, Ky. St., reads as follows: "A mar with the rule therein announced, it became, by ried woman may take, acquire and bold property, force of our adopting statute, the law of this real and personal, by gift, devise or descent, or State. In Moore y. Wilson, 1 Term R. 659, the by purchase, and she may, in her own name, as doctrine announced in the case just referred to if she were upmarried, sell and dispose of her was reaffirmed, and the court held further that it personal property. She may make contracts and was immaterial whether the bire was to be paid sue and be sued, as a single woman.
by the consignor or the consignee, as the former This legislation is a step in the direction of the was, in law, liable to the carrier for the hire. In abrogation of the common law unity of husband Joseph v. Knox, 3 Camp. 320, it was held that and wife. As the wife has the right to the con an action by the consignor would lie. The opinsortium of her husband, and deprivation inflicts ion was rendered by Lord Ellenborough, who an injury to her personal rights, and as the stat said: 'I am of opinion that this action well lies. ute we have quoted affords the remedy by allow There is a privity of contract established between ing her to maintain an action independent of and these parties by means of the bill of lading. regardless of the wishes of her husband, we are That states that the goods were shipped by the of the opinion that the court below erred in sus plaintiffs, and that the freight for them was taining a demurrer to the petition."
paid by the plaintiffs in London. To the plaint
iffs, therefore, from whom the consideration ACTION BY AGENT.-In Carter v. Southern Ry., moves, and to whom the promise is made, the 36 S. E. Rep. 308, decided by the Supreme Court defendant is liable for the non-delivery of the of Georgia, it was held that a person who, having goods. After such a bill of lading has been signed in charge as agent the goods of another, makes by his agent, he cannot say to the shipper they with a common carrier a contract to ship such have no interest in the goods and are not damnigoods, in which the agency is not disclosed, may fied by his breach of contract. I think the plaintmaintain an action in his own name for a breach iffs are entitled to recover the value of the goods, of such contract. The court' said in part:
and they will hold the sum recovered as trustees "The courts of both this country and England for the real owner.' In Dunlop v. Lambert, 6 are now, with a few exceptions, all agreed that, Clark & F. *600, the House of Lords held: where the consignor makes the contract of ship-1 'Though, generally speaking, where there is a ment with the carrier, he may bring an action delivery to a carrier to deliver to a consignee, the for loss of or injury to the consignment, al latter is the proper person to bring the action though he may not be the actual owner of the against the carrier; yet, if the consignor make a property. In such a case the frivity of con special contract with the carrier, such contract tract between the carrier and the consignor is supersedes the necessity of showing the ownera sufficient foundation on wbich to base the ac ship in the goods, and the consignor may maintion. It is also well settled by the authorities tain the action, though the goods may be the that where a consignor, who is himself not the property of the consignee. The special conreal owner, recovers damages from the carrier tract' referred to in the above quotation was for a breach of the contract of carriage, the re simply a bill of lading declaring that the goods covery inures to the benefit of the owner, and were to be delivered to Matthew Robson, “freight the consignor is regarded simply as the trustee for the same goods being paid by William Dunlop of an express trust. It would seem to follow & Co.,' the plaintiffs. The case of Dawes v. Peck, necessarily from this that a recovery by the 8 Term R. 330, is sometimes cited as authority consignor for a breach of the contract would for a contrary rule. That case is thus commented be a bar to an action by the owner in tort for upon and distinguished by Judge Turley in the the injury done him. The English courts have, case of Carter v. Graves, 9 Yerg. 446, 450. In so far as we are aware, uniformly adhered to that case 'an action on the case was brought by a the rule that an action for a breach of a con consignor against a common carrier for not tract of carriage made with the consignor may safely carrying, according to his undertaking, in be maintained by him. In Davis V. James, 5 consideration of a certain hire and reward to be Burrows, 2680, a decision rendered in 1770, it therefor paid, two casks of gin from London to was held that 'action lies against carrier in name one Thomas Aday at Hillmorton, in 'Warwick
shire. The court determined that, if a consigoor like a factor or other mercantile agent who con. of goods deliver them to a particular carrier by tracts in bis own name on behalf of his principal.' the order of a consignee, and they be afterwards Another well considered case, in wbich an elablost, the consignor cannot maintain an action orate review of the authorities is made, is Exagainst the carrier, and that the action can only press Co. v. Craft, 49 Miss. 480. In Railroad Co. be maintained by the consignee. In this case v. McComas, 33 m. 186, it was ruled: "Where there is no contract with the consignor by the goods are shipped upon a railroad for transporcarrier for the delivery of the articles; the freight tation, the consignor may sue for their nonis not paid by bim; the property is delivered to a delivery, though he be but a bailee. He has such carrier specified by the consignee; and, more a special property in the goods as to give him a than all, the court, in the opinions delivered, right of action. So may the real owner sue, and refer to the cases of Davis v. James, 5 Barrows, so may the consignee.' It was ruled further in 2680, and Moore v. Wilson, 1 Term R. 659, and that case that, whichever of these three first obrecognize them as sound authority.' A leading tains damages, it will be in full satisfaction of the American case is Blanchard v. Page, 8 Gray, claims of the others. 281, where, after an elaborate review of the au “We have not undertaken to collate here all of thorities, Chief Justice Shaw reached the con the cases bearing upon this question. Many of clusion that 'the shipper named in a bill of lading them, perhaps nearly all, are cited in the decisions may sue the carrier for an injury to the goods, above referred to. The following also support although he has no property, general or special, the ruling made in the present case: Cobb v. therein. The reasoning upon which this ruling Railroad Co., 38 Iowa, 601 (Syl. point 8); Dows is based seems to be unanswerable, and the decis v. Cobb, 12 Barb. 310; Harvey v. Railroad Co., ion ought to be accepted as decisive of this 74 Mo. 539; Atcbison v. Railway Co., 80 Mo. 213; question. It must not be lost sight of that the Moore v. Sheridine, 2 Har. & McH. 453; Express present action was based upon a contract. If the Co. v. Caperton, 44 Ala. 101; Railway Co. v. action had been based upon the tort of the carrier Smith, 84 Tex. 348, 19 S. W. Rep. 509; Railway in delivering the goods in a damaged condition, Co. v. Scott, 4 Tex. Civ. App. 76, 26 S. W. Rep. then a question entirely different from that in 239; Railroad Co. v. Emrich, 24 Ill. App. 245; volved in the present case would be raised. In Packet Co. v. Shearer, 61 III. 263; Brill v. Railway such a case it would seem that the right of action Co., 20 U.C.C. P. 410; Moran v. Packet Co., 35 is to recover for the injury to the interest or Me. 55; Cantwell v. Express Co., 58 Ark. 487, 25 right in the property, and the shipper, if not the S. W. Rep. 503; Goodwyn v. Douglas, Cheves, owner, could not bring such an action. The dis 174; 3; Enc. Pl. & Prac. 826; Hutch. Carr. sec. tinction between such a case and one like the 724, et seq.; Parks v. Railway Co. (Tex. Civ. present was pointed out in Finn v. Railroad Co., App.), 30 S. W. Rep. 708; Railway Co. v. Barnett 112 Mass. 524, where it was ruled, in effect, that, (Tex. Civ. App.), 26 S. W. Rep. 782; Davis v. in order to authorize an action by the consignor, Southeastern Line (Mo. Sup.), 28 S. W. Rep. who is not the owner of the goods, there need be 965." no express contract between him and the carrier, but that the action may be maintained upon the contract implied by the delivery and receipt of the goods for carriage, if no action ex delicto has
OFFICIAL BONDS OF STATE AND MUbeen begun by the consignee; and that the consignor will hold the sum recovered in trust for
NICIPAL OFFICERS NOT TAXABLE the consignee. In Carter v. Graves, 9 Yerg. 446,
BY THE FEDERAL GOVERNMENT. it was held: 'A consignor cannot maintain an action on the case for the loss or injury of the
Schedule "A" of the war revenue law of property consigned without showing ihat he has 1898 contains this item, “Bond: For indema general or special right thereto,, but he may innifying any person or persons, firm, or corall cases maintain an action of assumpsit upon a contract to deliver the property safely, he having gaged as surety for the payment of any sum
poration who shall have become bound or enmade the same, and paid or become bound for the consideration.' In Hooper v. Railway Co.,
of money, or for the due execution or per27 Wis. 81, 91, it was said: "The sbipper is a formance of the duties of any office or poși. party in interest to the contract, and it does not tion, and to account for money received by lie with the carrier who made the contract with
virtue thereof, and all other bonds of any debim to say, upon a breach of it, that he is not entitled to recover the damages unless it be
scription, except such as may be required in shown that the consignee objects; for without legal proceedings, not otherwise provided for that it will be presumed that the action was com
in this schedule, fifty cents." Under this menced and is prosecuted with the knowledge provision the revenue officers of the federal and consent of the consignee, and for his benefit.
government have been requiring State and The consignor or shipper is, by operation of the rule, regarded as a trustee of an express trust, their official bonds. While the amount ex
municipal officers to affix revenue stamps to
acted from each one is small, the aggregate agencies of the State government. amount of revenue thus collected is consid There is nothing in the constitution of the erable, and is a burden upon the States and United States which can be made to admit of their officers, which if unauthorized should be any interference by congress with the secure removed. In many instances the burden is existence of any State authority within its oppressive and materially interferes with the lawful bounds. And any such interference by exercise of important governmental func the indirect means of taxation is quite as much tions, e. g., in the case of minor officers like beyond the power of the national legislature treasurers of school districts, where the diffi as if the interference were direct and ex. culty of getting suitable persons to accept the offices is increased by this burden. The The exact question now under discussion act above referred to provides penalties and was decided by the Supreme Court of Indifines for failing to affix the specified stamps, ana in the case of State v. Garton, where it so that the constitutionality of the provision was held that congress has no power to imabove quoted may be directly pertinent in pose a stamp tax upon the official bond given criminal prosecutions. Moreover, in view of by a sheriff to the State. The argument Sec. 7 of the revenue act, which attempts to upon which the court based this decision is make any taxable instrument, document, or briefly as follows: The constitution of paper, incompetent as evidence in any court, the United States recognizes the existence unless properly stamped, the question of the of State governments as fully as that of the taxability of said bonds may become collat- national government. Each is sovereign erally pertinent in important civil litigation within its proper sphere. “If a State is to exor criminal prosecutions. The question, ist as a sovereign it must of necessity have the therefore, seems to be of sufficient general power to select its agents to execute its laws, interest and importance to merit discussion. and must be empowered to exact from them Chief Justice Marshall, in the leading case of such pledges for the faithful performance of McCullough. v. Maryland, laid down the their duties as may seem best calculated to doctrine that it is not in the power of a State secure their performance. In exacting such to tax the agencies whereby the general gov- security it must be as independent of all ernment performs its functions, the question control as in enforcing the condition of the at issue in that case being whether the State bond when forfeited.” “The principle which of Maryland could impose a tax upon a bank operates as a limitation upon the power of the of the United States, an agent of the national State to tax the agents and minute machinery government in the accomplishment of its employed by the general government to carry constitutional purposes. This question was out its constitutional functions, must in turn decided in the negative. This leading case equally restrain the power of congress to tax, has been followed by many similar ones rec to trammel, or destroy the means used by the ognizing the limitation upon the power of the State to perpetuate an existence as sacred States, holding that it is not within their under the constitution as the national life, power to tax an officer of the general govern because a constituent of that life." "The ment, or his salary,” or the obligations or tax upon the official bond executed by the evidences of debt issued by it, etc. The State officer is, to that extent, a tax upon the correlative doctrine recognizing similar limi-State," and, therefore, unconstitutional, howtations upon the power of the general gov ever small the amount exacted; for the power ernment with respect to the agencies of the to exact one dollar involves the power to levy State government has also been well estab one thousand. The power to tax involves lished. “If the States cannot tax the means the power to destroy. The power is thereby which the national government performs fore denied in toto. its functions, neither, on the other hand, and As stated in a note following the case last for the same reasons, can the latter tax the cited, in the American Reports, vol. 2, page 322,
its doctrine is practically affirmed by the more 14 Wheat. (U. S.) 316, 4 L. Ed. 579, decided in 1819. 2 Dobbins v. Commissioners of Eric. Co., 16 Pet. (U.
recent decision of the Supreme Court of the S.) 435, 10 L. Ed. 104.
3 Cooley's Const. Lim. page 591, and cases there 4 Cooley's Const. Lim. (6th Ed.) p. 592. cited.
5 32 Ind. 1, 2 Am. Rep. 315.
United States in the case of Day v. Buffing
TAXATION DOMESTIC CORPORATIONS
BONDS-DEED OF TRUST - FOREIGN COR. ton, where it was held that congress cannot
PORATIONS - RESIDENT BONDHOLDERSimpose a tax upon the salary of a judicial SITUS FOR TAXATION. officer of the State. · In coming to this con:
IN RE FAIR'S ESTATE. clusion the supreme court uses substantially the same argument as that used in the above
Supreme Court of California, May 16, 1900. case of State v. Garton. Also the same
1. Under Const. art. 13, $ 4, providing that for the arguments were used by the supreme court
purpose of taxation a mortgage or other obligation by in a later case? where it was held that con which a debt is secured shall be deemed an interest gress could not either directly or indirectly
in the property affected thereby, except as to rail
roads and other quasi public corporations, in case of tax or lay any burden upon the revenue of a
debts so secured the value of the property affected by municipal corporation, the attempt being in such mortgage, less the value of such security, shall this case to impose a tax on certain interest
be assessed to the owner thereof in the county, city,
or district in which the property affected thereby is in the hands of a railroad company, payable
situate, the bonds of domestic corporations, neither by it to the city of Baltimore upon bonds railroads nor quasi public corporations secured by owned by the city. Upon the question of ex
deed of trust, are not subject to taxation, as the se.
curity for such bonds is assessed as an interest in the tending the doctrine of the former cases to
property affected thereby. protect municipal corporations as well as the
2. Under Const. art. 13, § 1, providing that "all more direct agents of the State, the court property in the State shall be taxed,” the bonds of a says: “Such institutions (municipal corpo
foreign railroad company operating a railroad en:
tirely without the State, held by a resident of the rations) are auxiliaries of the government in State, are taxable to the owner, though the bonds the important business of municipal rule. A themselves are kept without the State. municipal corporation like the city of Balti
BRITT, C.: James G. Fair, at the time of his more is a representative not only of the State, death, was a resident of the city and county of bat is a portion of its governmental power. San Francisco, in this State, and his estate is in It is one of its creatures made for a specific
course of administration in the superior court of
said city and county. Section 3820, of the Political purpose, to exercise within a limited sphere
Code (amended by St. 1895, p. 335), provides for the powers of the State.” It will be seen
the collection of taxes on personal property by from the above that the Supreme Court of
the assessor, when, in bis opinion, such taxes are Indiana has decided that the national govern not a lien upon real property sufficient to secure ment may not tax the bonds of State officers, payment of the same. Personal property of the and that the United States Supreme Court in
estate of Fair, to a large amount in value, was as
sessed for purposes of taxation for the fiscal year two cases has decided analogous questions
1899-1900 by the assessor of said city and county. the same way. It follows, therefore, that it
Afterwards the assessor filed a petition in said the provision of the revenue law above quoted superior court praying an order directing the excontemplates the taxing of bonds of State or ecutors of the last will of said deceased to pay the municipal officers, it is, to that extent, un taxes on the personalty assessed as aforesaid,
which taxes amounted to $98,812. The executors constitutional. Under the rule of construc
answered the petition, and for defense alleged, tion that requires that a statute be so con
among other things, that they had tendered to the strued as to uphold it if possible, this provis assessor the amount of the taxes on all the perion ought probably to be construed as in sonal property of said estate liable to taxation in tended to apply only to officers of the federal said city and county, and that he refused to re
ceive the same; that the residue of the property government.
assessed consists of the bonds of various corporaOwensboro, Ky. Hayes & Wells.
tions secured by mortgage on the property of the
obligors, respectively, which bonds, the executors 6 78 U. S., 11 Wall. 113, 20 L. Ed. 122.
claimed, are not subject to taxation in said city United States v. B. &0. R. R. Co., 84 U. S., 17 and county. The court sustained a demurrer to Wall. 322, 21 L. Ed. 597.
the answer, and made an order requiring the executors to pay the sum demanded by the assessor, from which order they have appealed. The bonds mentioned in the answer of the executors constitute the great bulk of the property assessed as stated. They are separable into three general classes, each requiring distinct consideration.
1. The first class consists of bonds of the South Pacific Coast Railway Company, and bonds of the
Northern Railway Company of California, each be assessed as an interest in the property incumof which railroad companies is a corporation or bered for their payment. Since they are secured ganized under the laws of this State, and engaged by deed of trust of real estate belonging to the in operating a railroad wholly within the State. obligor, they are by express requirement of said The bonds are secured by mortgage on all the section to be deemed and treated, for purposes of property of the respective mortgagors. The valu assessment and taxation, as an interest in such ation thereof in the agsessment aforesaid amounts property. That property being real estate, the to above $4,500,000. The question of the liability bonds can in no event be assessed as mere perto taxation of bonds such as these is fully treated sonal debts or credits. When properly assessed, in the opinion rendered in Germania Trust Co. v. the tax on them is to be collected by the tax colCity and County of San Francisdo (S. F. No. 2.031, lector, and not by the assessor, under section 3820, this day filed), 61 Pac. Rep. 178, and for the rea Pol. Code. No one bas ever supposed that under sons therein stated the assessment of the bonds of the law of this State as it now stands a promissory this class is void.
note secured by mortgage of lands can be disso2. The assessment includes bonds of certain ciated from the mortgage, and assessed as an undomestic corporations not “railroad or quasi pub secured credit of the holder. The bonds of the lic," which bonds are secured by deed of trust of Pacific Rolling Mills Company are secured by real property. The principal item of this class deed of trust instead of a mortgage, but that is a consists of bonds of the Pacific Rolling Mills wholly immaterial difference. The assessment of Company valued at $73,000. Section 4 of article them in the manner disclosed by the record here 13 of the constitution of this State is as follows: was void. "A mortgage, deed of trust, contract or other ob 3. The bonds remaining to be considered are ligation by which a debt is secured shall, for the those of certain railroad corporations organized purposes of assessment and taxation, be deemed under the laws of the State of West Virginia, and and treated as an interest in the property affected engaged in operating their respective roads in thereby. Except as to railroad and other quasi that State and elsewhere than in the State of Calipublic corporations, in case of debts so secured, fornia. The assessment of this class of bonds the value of the property affected by such mort amounts to something over $713,000. These bonds gage, deed of trust, contract or obligation, less are not, and never have been, physically present the value of such security, shall be assessed and in the said city and county of San Francisco, or taxed to the owner of the property, and the value within this State, but have been and are kept in of such security shall be assessed and taxed to the the city of New York or elsewhere at the East. owner thereof, in tbe county, city or district in The executors contend that the State of California which the property affected thereby is situate. has not provided by law for the exercise of the The taxes so levied shall be a lien upon the prop right which it admittedly possesses to tax choses erty and security, and may be paid by either party in action owned by a resident of the State, the to such security; if paid by the owner of the se paper evidences whereof are without the geocurity, the tax so levied upon the property affected graphic confines of the State. They cite the prothereby shall become a part of the debt so se vision of section 1 of article 13 of the constitution, cured; if the owner of the property shall pay the that all property in the State shall be taxed," tax so levied on such security, it shall constitute etc., as declarative of the policy that only propa payment thereon, and to the extent of such pay erty corporeally present in the State is to be ment a full discharge thereof; provided, that if | taxed; to wbich the assessor replies that the bonds any such security or indebtedness shall be paid in contemplation of law are within the State, beby any such debtor or debtors, after assessment cause of the principle that intangible personal and before the tax levy, the amount of such levy property has no situs apart from the domicile of may likewise be retained by such debtor or debtors, the owner. and shall be computed according to the tax levy As to corporeal chattels, such as live animals, for the preceding year.” Referring to the pro manufactured goods, and the like, it is doubtless visions of this section, it is remarked in the brief the rule that they are taxable in the State wbere of counsel for the assessor: “This needs no in they bave local situation, though the owner may terpretation. The mortgage bonds are assessable reside elsewhere. The executors argue that the to the owners thereof. The property affected bonds here in question have been assimilated to thereby, less the bonded indebtedness, is to be the species of property just mentioned, and "bave assessed to the owner thereof." It may be ad. acquired the character of tangible, visible propmitted that mortgage bonds such as those of the erty with reference to taxation.” We cannot acPacific Rolling Mills Company are assessable to cede to this proposition in its generality. There the holders of them, or, if the names of the hold is a great difference between such bonds and ers are not ascertainable, then to unknown owners, tangible goods. If a domestic animal perishes, although the exigencies of this case do not re or if a ship is lost, that much property has ceased quire a decision of that question; but to whomso to exist, and the owner is poorer by the value of ever they are assessed and taxed it is perfectly the same. If, bowever, the bond evidencing a plain that the mode adopted must be that pre debt is destroyed, the debt is not affected; the scribed by said section 4—that is to say, they must owner may still collect both principal and inter