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perintendent of insurance, for the benefit cal policy holders. Subsequent provisions of and security of its policy holders residing in the section further show that this deposit is this state, a sum not less than one hundred to be regarded as a part of the capital of thousand dollars in stocks or bonds of the such foreign insurance company, which may United States, or the state of Ohio, or any be considered in determining the aggregate municipality or county thereof, which shall capital of the company required by law. not be received by the superintendent at a The companies are permitted to collect the rate above their par value; the stocks and interest or dividends
dividends on the
the securities. securities so deposited may be exchanged These deposits constitute a fund primarily from time to time for other like securities; for the benefit of such policy holders, and so long as the company so depositing con- after their claims are satisfied may be tinues solvent and complies with the laws of turned over to an assignee or devoted to this state, it shall be permitted by the super- other purposes. Falkenbach v. Patterson, intendent to collect the interest or dividends 43 Ohio St. 359, 1 N. E. 757; State v. on such deposits; and for the purpose of Matthews, 64 Ohio St. 419, 60 N. E. 605. this chapter the capital of any foreign com- This statute, therefore, provides for the pany doing fire insurance business in this manner of investment of a portion of the state shall be deemed to be the aggregate capital stock of a foreign insurance comvalue of its deposits with the insurance or pany within the state of Ohio for the proother departments of this state and of the tection of the policy holders within the state. other states of the United States, for the It is more than a mere "investment in benefit of policy holders in this state, or in bonds.” It is also a part of the capital the United States, and its assets and stock required to be deposited as a condition investments in the United States, cer- of doing business within the state, and detified according to the provisions of this voted to the benefit of local stockholders. chapter; but such assets and investments The authority to enact laws for the impomust be held within the United States and sition of taxes is found in the Constitution invested in and held by trustees, who must of the state, article 12, § 2, which provides: be citizens of the United States, appointed "Laws shall be passed, taxing by a uniform by the board of directors of the company, rule all moneys, credits, investments in and approved by the insurance commissioner bonds, stocks, joint stock companies, or of the state where invested, for the benefit otherwise; and also all real and personal of the policy holders and creditors in the property, according to its true value in United States; and the trustees so chosen money.' may take, hold, and convey real and per- Section 2731 provides, in language similar sonal property for the purpose of the trust, to that used in the Constitution, for the taxsubject to the same restrictions as companies ation of all property, real and personal, in of this state." [91 v. 40; 70 v. 147, § 21; the state, and all moneys, credits, invest(S. & S. 212).]
ments in bonds, stock, or otherwise, of perThis section is part of the chapter of the sons residing in the state. This section is Ohio statutes regulating insurance com- found in the first chapter of Title 13, “Taxapanies other than life. In the same chapter tion,” of the Ohio Statutes, and is in part in may be found other sections regulating the the following language: manner of doing business in Ohio by insur- “Sec. 2731. All property, whether real or ance companies, and in § 3637 we find a pro- personal, in this state, and whether belong. vision as to how the capital of domestic in- ing to individuals or corporations; and all surance companies shall be invested, and moneys, credits, investments
in such companies are required to invest their stocks, or otherwise, of persons residing in capital in certain United States, state, coun- this state, shall be subject to taxation, exty, and municipal bonds, etc. These domes- cept only such as may be expressly exempted tic companies are in like manner required therefrom; and such property, moneys, credto deposit such securities with the commis-its, and investments shall be entered on the sioner for the benefit of their policy holders list of taxable property as prescribed in this (Ohio Rev. Stat. $8 3593, 3595), and with title." out such deposit are not authorized to do] "The argument for the insurance company business within the state. As a condition is, that this preliminary section, read with of doing business in Ohio, companies organ- the other sections of the Ohio law upon the ized under the laws of foreign governments subject, excludes “investment in bonds” are, by § 3660, required to invest a portion from being embraced in a general descripof their capital in the stock or bonds of the tion of personal property, and limits their United States or of the state of Ohio, or taxation to persons residing in the state, or some municipality or county thereof, and (under § 2730) where they are held within make deposit of such bonds with the super- the state for others by persons residing intendent of insurance for the benefit of lo- ' therein.
Section 2730 of the same chapter is a sec- to the several auditors of the respective tion giving definitions of terms used in the counties in which the same may be located. title. So far as it is pertinent in this con- It shall be the duty of the auditor of each nection, that section is as follows:
county, on or before the first Monday of “Sec. 2730. The terms 'investments in May, annually, to furnish the aforesaid bonds' shall be held to mean and include all president, secretary, principal accounting moneys in bonds or certificates of indebted- officer, or agent the necessary blanks for ness, or other evidences of indebtedness, of the purpose of making aforesaid returns; whatever kind, whether issued by incorporat- but no neglect or failure on the part of the ed or unincorporated companies, towns, county auditor to furnish such blanks shall cities, villages, townships, counties, states, excuse any such president, secretary, prinor other incorporations, or by the Unitedcipal accountant, or agent from making the States, held by persons residing in this state, returns within the time specified herein. whether for themselves or others."
If the county auditor to whom returns are If these sections embraced all the statu- made is of the opinion that false or incortory law of the state, together, they tax in- rect valuations have been made, or that the vestments in bonds held by residents, be- property of the corporation or association cause of jurisdiction over the person of the has not been listed at its full value, or that owner, and those held by residents for other it has not been listed in the location where owners, and if such reside out of the state, it properly belongs, or in cases where no re
, because of jurisdiction over the property turn has been made to the county auditor, held within the state.
he is hereby required to proceed to have Section 2744 undertakes to make provi- the same valued and assessed: Provided, sion for the taxation of corporations gener- That nothing in this section shall be so ally, and is as follows:
construed as to tax any stock or interest “Sec. 2744. [Corporations generally; their in any joint stock company held by the returns.] The president, secretary, and state.
state." [73 v. 139, § 16; (S. & C. 1446).] principal accounting officer of every canal or This section is broad in its terms, and reBlackwater navigation company, turnpike quires the return of the property, among eompany, plank-road company, bridge com- others, of insurance companies, whether inpany, insurance company, telegraph com-corporated by the laws of Ohio or not, and pany, or other joint stock company, ex- such companies are required to list for taxcept banking or other corporations whose ation "all the personal property, which shall taxation is specifically provided for, for be held to include all such real estate as whatever purpose they may have been is necessary to the daily operations of the created, whether incorporated by any law company, moneys and credits of such comof this state or not, shall list for taxa- pany or corporation within the state, at tion,
its actual value in money." 30 listing, all the personal property
, which The supreme court of Ohio has expressly shall be held to include all such real estate held that this section applies to foreign as as is necessary to the daily operations of the well as domestic corporations. Hubbard v. company, moneys and credits of such com- Brush, 61 Ohio St. 252, 55 N. E. 829; Lanpany or corporation within the state, at the der v. Burke, 65 Ohio St. 532-542, 63 N. actual value in money, in manner following: E. 69. In all cases return shall be made to the This section, therefore, requires of both several auditors of the respective counties foreign and domestic insurance companies where such property may be situated, to- that they return the personal property mengether with a statement of the amount tioned which is within the state. What is of said property which is situated in meant by “personal property," in this coneach township, village, city, or ward there nection?
nection? Referring to § 2730 we find it in. The value of all movable property shall provided that the terms “personal property,"
” be added to the stationary and fixed prop- when used in the title, shall be held to mean erty and real estate, and apportioned to such and include, among other things, the capital wards, cities, villages, or townships, pro stock, undivided profits, and all other means rata, in proportion to the value of the real not forming a part of the capital stock of estate and fixed property in said ward, city, every company. village, or township, and all property so In the case of domestic corporations, and listed shall be subject to and pay the same assuming that this statute applies, as has taxes as other property listed in such ward, been held by the supreme court of Ohio, city, village, or township. It shall be the with equal force to foreign corporations, dut of the accounting officer aforesaid to this definition of personal property must be make return to the auditor of state during held to include not only the paid-in capital the month of May of each year of the aggre- stock of the company, but as well the bonds gate amount of all property by him returned ' or securities in which it may be invested.
This question was before the supreme consideration of the case before us. While court of Ohio in Jones v. Davis, 35 Ohio St. technically the bonds deposited with the in474.
surance commissioner are investments in In that case the act of May 11, 1878, was bonds, they are also a part of the capital before the court. It contained provisions stock of the company invested in Ohio, and similar to those of the Revised Statutes, re- required to be so invested for the security of quiring personal property of every descrip- domestic policy holders, and, for the purtion, moneys and credits, investments in poses of taxation, to be considered a part of bonds, stock, joint-stock companies, or other the capital stock of the company, and inwise, to be listed in the name of the person cluded within the definition of “personal who is the owner thereof on the day preced property," as given in § 2730. ing the second Monday of April in each year. This conclusion is reinforced by the deci
Section 11 of that act made provisions sion in Hubbard v. Brush, 61 Ohio St. 252, similar to those found in § 2744, requiring 55 N. E. 829. In that case the supreme incorporated companies to list for taxation court of Ohio held that a foreign corporaall their personal property which, by the tion transacting business in Ohio was reterms of the statute, was made to include quired to return its property within the all such real estate as was necessary to the state where it was carrying on business, aldaily operation of the company, and all its though the corporation was organized under
, moneys and credits within the state at their the laws of West Virginia. actual value in money. After citing Bank The court admitted that the situs of inTax Case, 2 Wall. 208, 17 L. ed. 795, and tangible property is ordinarily at the local Farrington v. Tennessee, 95 U. S. 686, 24 residence of the corporation, within the L. ed. 560, Judge Boynton, delivering the state where it was incorporated. Nevertheopinion of the court, said:
less, as the promissory notes and book ac“For the purposes of taxation, the capi-counts and other evidence of indebtedness tal stock is represented by whatever it is must be presumed to have been in the cominvested in. Personal property, by the ex
onal property, by the ex- pany's office in this state, they were taxpress wording of the statute, is made to in- able as personal property under $ 2744. clude the capital stock of a corporation; and In the course of the opinion Judge Bradthe provision above referred to requires all bury said: corporations doing business in this state, ex- “Where foreign corporations voluntarily cept banking and others whose taxation is bring their property and business into this specifically provided for, to list all their per- state to avail themselves of advantages sonal property, including in the return found here, which they believe will enhance thereof all such real estate as is necessary the probabilities that the business they into the daily operation of their business, to- tend to pursue will be profitable, they should gether with their moneys and credits of not be heard to complain of laws which tax every description within the state. That them as domestic corporations are taxed by the legislature intended, by this description the state. We hold, therefore, that the proof property, to embrace the capital stock of visions of g 2744, which make it the duty the company, is too obvious to be misunder- of foreign corporations to list for taxation stood. No other meaning can be drawn from in this state their choses in action, where the language employed, and no other con- they are held within this state and grow out struction is better calculated to do justice.” of the business they conduct herein, is a
In Lee v. Sturges, 46 Ohio St. 153, 160, valid exercise of the taxing powers vested in 2 L. R. A. 556, 558, 19 N. E. 560, 564, the state." Judge Spear, speaking for the court, said: Under § 2744, corporations, foreign and
“It may be assumed that 'capital stock domestic, are required to return all personand 'capital and property' mean practically al property for taxation, which, among the same thing. Primarily the 'capital other things, the statute expressly declares stock’ is the money paid in by the stockhold- shall include moneys and credits of such ers, in compliance with the terms of their company or corporation within the state. If subscriptions. It soon, however, takes the the construction contended for shall prevail, form of real estate or personal property, or a corporation, with capital invested in both, including machinery, buildings, cred- bondswould escape taxation, while one its, rights in action, etc. So that it may holding its investments in notes or certifihere be taken to mean personal property, cates of deposit in bank will be compelled and such real estate as may be necessary to to return them for taxation,-a condition the daily operations of the company, and of things so manifestly unjust that we canits moneys and credits. The capital is thus not hold it to have been within the intent represented by the property in which it has of the legislature in framing taxing laws been invested.”
unless the statutes clearly admit of no other We think this language pertinent in the construction. The purpose of the Ohio Constitution and statutes passed in pursuance be held to require a return of these bonds thereof, as has been frequently declared by by the insurance company, that the company the supreme court of Ohio, is to tax, by a comes within the exception of the statute exuniform rule, all property owned or held cluding banking or other corporations whose within the state. A narrow construction, taxation is specifically provided for in other which will defeat this purpose, should not parts of the title. And it is argued that s be adopted.
2745 of the Revised Statutes of Ohio makes The statutes, specifically mentioning "in- express provision for the taxation of foreign vestments in bonds," were intended to reach insurance companies. and tax, and not to exempt, that class of Examination of this section shows that it personal property. The purpose to tax all imposes a tax upon the business of the comreal and personal property, declared in the pany in Ohio, and is not a property but a statute, was further emphasized by express privilege tax. Insurance companies are remention of certain classes of property, such quired to return in each county the amount as investments in bonds, so that, by no proc of the gross premium receipts of its agency ess of exclusion, could such securities escape for the previous calendar year, and, under the burdens imposed upon all property certain regulations, the company is taxed owned or held within the state.
upon the amount of business done. The sections taxing individuals holding This section does not levy a tax upon such securities were not intended to put lim- property. There are subsequent statutory itations upon other sections of the law tax- provisions of a special character, upon which ing the property of corporations held within the exception of g 2744 may operate, taxthe state, and enjoying the protection of its ing the property of railroad companies, laws, and affording a basis for credit in the banks, express, telegraph, and telephone transacting of business. There is no reason companies, etc., but there is no other pro
. why the law should tax such securities in vision imposing a property tax upon forthe hands of individual residents, whethereign insurance companies within the state. owned or held by them for others, and per- The requirement that these bonds should mit then, to escape taxation when they rep- be deposited for the security of the local resent invested capital of incorporated com- policy holders brought a part of the capital panies, sharing the protection of the govern- of such company into the state of Ohio, upment and equally bound, in morals, at least, on the strength of which it transacts its to help bear the burdens of the state. business and obtains credit within the state.
That such securities might justly be taxed Clearly, such property is not intended to be was freely admitted in the argument at taxed within the provisions reaching the bar, and the sole contention was that the business done in the state of Ohio under $ lack of statutory power to tax these secu- 2745. rities is a casus omnissus in legislation But it is said that there is no person withwhich the courts cannot supply.
in the state required to return this property. It may be conceded that no tax can be We think it is the duty of the officers of the levied without express authority of law, insurance company, under § 2744, to return but the statutes are to receive a reasonable the property, and that the place to return construction with a view to carrying out it is where the property is situated. This their purpose and intent.
is clearly required by the terms of this secWe have examined the decisions of the tion, and § 2735, making provision for the supreme court of Ohio, cited by counsel, place of listing personal property, proconstruing the statutes of the state, and be- vides : lieve none of them to be inconsistent with “And all other personal property, moneys, the conclusions we have reached, and those credits, and investments, except as otherabove cited, in our opinion, are direct au-wise specially provided, shall be listed in thority for the construction given. All the the township, city, or village in which the sections must be construed together to at-person to be charged with taxes thereon may tain the object and intent of the law. Sec- reside at the time of the listing thereof, if
. tion 2731, standing alone, might limit the such person reside within the county where right to tax investments in bonds to resi- the same are listed, and if not, then in the dents of the state. It is certainly enlarged township, city, or village where the propby § 2730 to include such investments when erty is when listed." held for others by residents within the state. These bonds were the property of the corRead with $8 2734, 2735, 2744, and 2746, poration, taxable under the statutes, and, we think the purpose is manifest to require at the time when they should have been listthe return and taxation of all personal prop-ed, were held in the city of Columbus, erty, except the small exemptions allowed, Franklin county, Ohio, and should have been within the jurisdiction of the state.
there returned. But it is urged if § 2744 could otherwise It is further argued that to distrain the property of the company for the collection preceding the second Monday in April, and of these taxes would be a violation of the such withdrawal was in the exercise of a constitutional rights of the insurance com- lawful right of the company so to do, and pany, and the taking of its property with other securities were substituted, as proout due process of law. Section 1095 pro- vided by law. We do not think that the vides :
fact that it had bonds in the state for a “Sec. 1095. [Overdue taxes may be col- time which were taxable justified the impolected by distress.]—When taxes are past sition of this tax, where the nontaxable sedue and unpaid, as stated in the preceding curities were substituted before the return section, the county treasurer, or his deputy, day. may distrain sufficient goods and chattels As to the question of personal liability belonging to the person or persons charged of the insurance company to judgment in an with such taxes, if found within his county, action brought to recover the amount of the to pay the taxes so remaining due and the taxes, we think the court should not have costs that have accrued; and shall immedi- issued an injunction, as was done, against ately proceed to advertise the same in three the prosecution of civil suits for this purpublic places in the township where such pose. If there is no personal liability for property was taken, stating the time when, these taxes,-a point which we do not feel and the place where, such property will be called upon to decide, -it is perfectly clear sold; and if the taxes and costs which have that, if service could be had which would accrued thereon are not paid before the day make a personal judgment proper, the comappointed for such sale, which shall be not pany could set up its defense by answer in less than ten days after the taking of such the action at law, and there is no necessity property, such treasurer, or his deputy, shall to resort to a court of equity for relief. It proceed to sell such property at public ven- will be presumed, if the claim of the comdue, or so much thereof as will be sufficient pany is right, no personal judgment will be to pay said taxes and the costs of such dis- rendered against it, and, if its theory of tress and sale. [29 v. 291, § 19; S. & C. the controversy is correct, no such judgment 1586.]”
can be lawfully rendered. In such case the This section authorizes the distraint of authorities are uniform that equity will goods to satisfy taxes lawfully levied against not interfere by injunction, but leave the property within the county and state. This party to his defense at law. U. S. Rev. Stat. method of collecting taxes is one of the most $ 723, U. S. Comp. Stat. 1901, p. 583; ancient known to the law, and has frequent- Phoenix Mut. L. Ins. Co. v. Bailey, 13 Wall. ly received the sanction of the courts. Den 616-623, 20 L. ed. 501-503; Grand Chute v. es dem. Murray v. Hoboken Land & Improv. Winegar, 15 Wall. 373, 21 L. ed. 174; DeCo. 18 How. 272, 276, 15 L. ed. 372, 374; weese v. Reinhard, 165 U. S. 386, 41 L. ed. Springer v. United States, 102 U. S. 586, 26 757, 17 Sup. Ct. Rep. 340. L. ed. 253; Cooley, Taxn. 302; Palmer v. MC- Upon the whole case we reach the concluMahon, 133 U. S. 660, 33 L. ed. 772, 10 Sup. sion that the circuit court was right in sus. Ct. Rep. 324.
taining the demurrer so far as the bill There is nothing in the exemption of gov- averred the nontaxability of these bonds, or ernment bonds from taxation which pre- the right of the treasurer to proceed by vents them from being seized for taxes due distraint, and in overruling the demurrer as upon unexempt property. We have held to the taxes for the year 1903; but, for the that the taxes were lawfully assessed. The reasons stated, erred in enjoining the prosstatute authorizing a distraint gave the ecution of a civil action seeking a personal right to proceed against personal property judgment. within the jurisdiction of the state. The In this view, the decree below will be retaxes were lawful, and the property belong. versed and the cause remanded for further ing to a foreign corporation which could be proceedings in conformity to this opinion. seized within the authority of the state might be taken under this statute, and we
(196 U. S. 407) do not perceive that any constitutional right HAMBURG AMERICAN STEAMSHIP of the company is violated by seizing its
COMPANY, Piff. in Err., property under such circumstances. Bristol v. Washington County, 177 U. S. 133, 44 L. MINNIE GRUBE, as Administratrix of ed. 701, 20 Sup. Ct. Rep. 585; Marye v.
John Grube, Deceased. Baltimore & o. R. Co. 127 U. S. 117, 32 L. Error to state court-Federal questioned. 94, 8 Sup. Ct. Rep. 1037.
cession to United States-effect of state As to the right to assess taxes for the
lars. year 1903, it appears that these municipal bonds were withdrawn from the state some 1. The contention that the congressional contime before the return day, which is the day sent, in the act of June 28, 1834 (4 Stat. at