1

guardian. In Pennsylvania the rule is recognized so as to make the property of infants residing out of the State, taxable to their guardians; but where the guardian and minor both reside in the State, the property is assessed to the guardian at the domicile of the minor; and so in Massachusetts and Rhode Island, where guardians of a minor or lunatic allow him to change permanently his domicile, the property is assessed to the guardian at the domicile of the minor or lunatic. When the minor and guardian both reside in the same State, the place at which his personal property is to be assessed, depends entirely upon a construction of the statutes of the particular State. If there is nothing in the statutes to indicate the place, and the property has no actual situs, it will follow the legal title, and be assessed at the residence of the guardian; if it has an actual situs, it should be assessed there, unless the statute directs otherwise.

For the purposes of taxation, a firm as a distinct entity, and not the individual members of it, is considered as the owner of its property, and it is to be assessed to the firm. The place of assessment of a firm is that where the business is conducted; usually the statute so provides. Where the partners reside in different districts, but one of them resides where the business is conducted, it is assessable at the place of business of the firm. When a firm is dissolved, it ceases to exist as a distinct entity, and is no longer assessable as such." By statute in New York, parties doing business in that State, whether as principals, or partners, special or otherwise, although residing out of that State, are liable to taxation at the place where their business is conducted, on the amount invested in such business. But such a statute does not repeal a former statute exempting foreign capital transmitted to agents in that State for purposes of investment, so as to make a foreign banking corporation, which had a permanent agency in New York-to which it transmitted surplus funds to be employed in temporary loans at all times subject to its control and draftsliable to taxation in New York.8

1 Tousey v. Bell, 23 Ind. 423; Payson v. Tufts, 13 Mass. 493; Smith v. Macon, 20 Ark. 17; Baldwin v. Fitchburg, 8 Pick. 494.

Carlisle v. Marshall, 36 Penn. St. 397; Westchester School District v. Darlington, 38 Penn. St. 157.

'School District v. James, 2 Watts & Serg. 568.

Kirkland v.

Whateley, 4 Allen, 462; Mason v. Thurber, 1 R. I. 481.

Stockwell v. Brewer, 59 Maine, 286; State v. Parker, 34 N. J. Law, 71.

Fairbanks v. Kittredge, 24 Vt. 9; affi'd in School District v. Kittredge, 27 Vt. 650; Peabody v. County, 10 Gray, 97.

Phul v. New Orleans, 24 La. Ann. 261.

8 People, &c. v. Com'rs of Taxes, 59 N. Y. 40.

Where a corporation, owning property in another State, becomes bankrupt, and in the State of its creation, an assignee is appointed, but the assessors in the State in which it has property, assess the property to the corporation in its corporate name, they having no actual knowledge of such assignment, the assessment is valid.1 Funds in the hands of receivers are sometimes taxed, and in such case, they should be assessed to the receiver in the place where the court sits which appointed the receiver, and to this court application should be made for payment of the tax out of the fund."

The assessors are to assess such property as is directed by statute to be assessed. If there be a species of property which comes under none of the descriptions of property named, then it is merely omitted and there is no authority to assess such property. Where a party had a right to collect wharfage and dockage for a term of years, this was said to be a franchise, an uncertain profit arising out of realty, neither realty nor personalty, a species of property not contemplated by the tax laws. A lease of land from the State for a term of years may be assessed as land, and the lease sold for non-payment of taxes. In New York a railroad track is assessed as land, although the railroad has not the fee in the land.

The property must not only be such as the legislature has directed to be taxed, but it must appear on the face of the list, to be included under some description of taxable property. Where a board of relief, gave the direction, "Add to J. A.'s list 5,000 dollars," which the town clerk did, rating it as personal property, such an assessment was declared illegal. Such expressions import money, which under the tax laws was not subject to taxation. So this item added by such board, "F. M., added stock and money at interest, 15,810 at threefold, 47,430," is void for want of certainty. It does not appear what kind of stock this was, and it may not have been taxable.'

99. Valuation of Property.-In many of the States, in some by constitutional provision and in others by legislative enactment, the lands in the State are required to be valued at regular intervals of time, varying from five to ten years, by persons specially appointed for the purpose. In others the valuation of lands, like that of personal property, is annual, made at the time of taking the list, and

1 Jones v. Bridgeport, 36 Conn. 283. De Witt v. Hays, 2 Cal. 463. People v. Cassity, 46 N. Y. 46.

7 Whittlesey v. Clinton, 14 Conn. 72.

2 Prince George Co. v. Clarke, 36 Md. 206. La Salle Co. v. Ottawa, 16 Ill. 418.

6 Adams v. Litchfield, 10 Conn. 127.

8 Const. Maine, art. 9, § 7; of Massachusetts, part 2, ch. 1, § 1, art. 4; art. 14, § 13; of Rhode Island, art. 4, § 15; of Virginia, art. 10, § 6.

of Michigan,

even in those States where there is a periodic valuation, the assessors, in making their annual assessment, add to the land theretofore valued the increased value by reason of the improvements which have been placed on it since the last periodic valuation, but in all other respects they follow such valuation. Where a statute requires an increase in valuation, "if any building or addition is erected on any lot," such language does not apply to an addition to the height or depth of a building, or changing the interior structure thereof, but only to a lateral addition. The value of the improvements on land is often placed in a separate column. In the States where mining is conducted, these improvements, where owned by a person other than the owner of the land, are sometimes assessed separately as personalty; otherwise they are included in the value of the land."

The question, how is land to be valued, or upon what basis, has given rise to much discussion in legislative bodies. The difficulty is generally to obtain a uniform valuation throughout the State, so that each part of the State may bear its appropriate part of the burden. This difficulty arises whatever may be the standard of valuation, and an attempt has been made to obviate it by boards of equalization. In Michigan and California, the standard is the cash value; in New York, it is at "a sum which the majority of the assessors decide to be the true value thereof, and at which they would appraise the same in payment of a just debt due from a solvent debtor;" in Virginia, at the cash value, which is ascertained by fixing the value upon the usual credits in the neighborhood, and rebating interest when interest is not usually allowed on deferred payments. The expression in most of the States is either "cash value," "fair cash value," "at its true value in money," or "in ready money." In Iowa, it is at its true cash value, having regard to its quality, location, natural advantages, general improvements in its vicinity, and all other elements of value. In Arkansas, water privileges are specially designated as an element of value; and in Illinois, the value of growing crops is expressly excepted as an element of value. The substance of the provision is the same in each State, the assessment being based on the value of the land, looking to all the circumstances of its surroundings, or what may be regarded as the cash market value. The income derived from land is not the proper criterion in ascertaining this value, and espe

1 State v. Parker, 34 N. J. Law, 332.

5

'Gorrell v. Murphy, 1 Penn. Leg. Gaz. 495.

3 Clark v. Crane, 5 Mich. 151; Hurlbut v. Butenop, 27 Cal. 50. Van Rensselaer v. Whitbeck, 7 N. Y. 520. Street's Digest of Tax Laws, tit. Standard of Value in all the States, pp. 184-196.

Code 1873, ch. 32, § 4, p. 278.

cially when contrasted with the price which the land brought at a recent public sale, the latter will always be regarded as prima facie correct.1 The owner in many of the States is allowed to make affidavit as to the value of his land, and in New York prior to 1851, this affidavit was conclusive as to value, but now a more reasonable system prevails, and it is only one of the elements to be considered by the assessors in forming their opinion. They act judicially in making an assessment. They proceed upon inquiry, and hear and determine from all the information before them, what is the value."

Where a company owned valuable water power which they rented out, and which was exempt from taxation, it was said to be proper, in estimating the value of lands not exempt, to take into consideration the increased value of such lands by reason of their proximity to the water power. So where a company has the privilege of supplying a city with water for twenty years, in valuing their land and the improvements thereon erected for the purposes of the water supply, the increased value of the land and improvements by reason of the privilege annexed, may be considered by the assessors.

5

996

Where a tract of land of 65 acres, which cost $2,531, had a dam erected at a cost of $33,770, the whole tract, including dam and reservoir, were assessed at $15,000, and the assessment was sustained, Welles, J., saying: "The valuation should be made not subject to the use to which lands and dams are for the time appropriated, nor, independently of that use, in any sense which excludes it from consideration as a means by which their value is made available." Just as in valuing lands on which mills are erected, while the water power as such is not included in the valuation, yet the capacity of the property for valuable use is not excluded from valuation because it is only of nominal value independent of the water power. This principle was applied to a company owning canals and locks, and a reservoir from which they supplied various mills in the town of Lowell with water power. In valuing their land, it was said that the water power was not to be regarded, as that was taken into consideration in valuing the mills in Lowell, but it was restricted to the water used by the mills; and it appearing that during nine months of the year there was a surplus of water, not used by the mills, this surplus was to be

ទ

People v. Barker, 48 N. Y. 70, 76, 77.

1 State v. Randolph, 1 Dutcher, 427. 48 N. Y. 76, 77; King v. Gwynn, 14 Fla. 32; Fairbanks v. Kittredge, 24 Vt. 9; State v. Kruttschnitt, 4 Nev. 178; Inhabitants of Newburyport v. Co. Com'rs, 12 Metc. 211. State v. Flavell, 4 Zabr. 370. 5 Stein v. Mayor, 17 Ala. 234.

6 Pingree v. Co. Com'rs, 102 Mass. 76.

Boston Water Co. v. Boston, 9 Metc. 199–204.

considered in estimating the value of the land, locks and dams of the company. A company owned land at the outlet of a lake, and the right of flowing the lake. They erected on this land dams and reservoirs, and conveyed the water by the river Isinglass to the Cocheco, to be used by mills on the latter river. The assessors considered the water power as a part of the land at the outlet of the lake in making their valuation, and their action was sustained.' A similar view is taken of the value of water power in England. Water power for mill purposes, is said to be a capacity of land for improvement, and is not to be taxed independently of the land; so where a stream on which a mill stands divides two towns, the water power is included in valuation only in the town in which the mill stands. In Vermont, the courts claim that the water power applied to a mill or factory, to the extent to which it is applied, becomes a part of the mill or factory itself; and when unimproved it is to be taxed with the land to which it is attached, if its existence adds value to it.5

The result arrived at by comparing these authorities seems to be substantially that which is expressed in the Iowa statute, that all the elements of value are to be considered in assessing land, and an exemption of buildings in a town is invalid, where the Constitution requires property to be assessed ad valorem. A mortgage on land is not to be deducted from its value in assessing the tax, but in some of the States, the mortgagee is allowed to deduct the mortgage debt, and other debts, from the amount of property which he returns for taxation.

The same rules apply to personal property as to real estate. It is to be assessed at its true market value in cash, of which the assessors are to judge from all the information they can obtain, and the affidavit of the tax-payer is only a circumstance to be considered by them, and is not conclusive upon them unless it is so provided by statute. And where the statute allows deductions to be made from the valuation of the assessors, on the affidavit of the tax-payer, he must comply with the statute strictly to obtain the benefit of it; if the statement is to be in writing and under oath, no verbal statement or promise of making a written one will suffice. The shares in corpora

1 Lowell v. Middlesex, 6 Allen, 131.

"Cocheco Manuf. Co. v. Strafford, 51 N. H. 455.

'Talargoch Lead Mining Co. v. St. Asaph Union, 3 Q. B. 478; Rex v. Bilston, 5 Barn, & Cres. 851.

4 Boston Manuf. Co. v. Newton, 22 Pick. 22.

5 Canal Co. v. Rockingham, 37 Vt. 622.

6 Fitch v. Pinckhard, 4 Scam. 69.

State v. Bishop, 34 N. J. Law, 45; State v. Parker, Id. 49.