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the section further show that this deposit is to be regarded as a part of the capital of such foreign insurance company, which may be considered in determining the aggregate capital of the company required by law. The companies are permitted to collect the interest dividends on the securities. These deposits constitute a fund primarily for the benefit of such policy holders, and after their claims are satisfied may be turned over to an assignee or devoted to other purposes. Falkenbach v. Patterson, 43 Ohio St. 359, 1 N. E. 757; State v. Matthews, 64 Ohio St. 419, 60 N. E. 605.

perintendent of insurance, for the benefit | cal policy holders. Subsequent provisions of and security of its policy holders residing in this state, a sum not less than one hundred thousand dollars in stocks or bonds of the United States, or the state of Ohio, or any municipality or county thereof, which shall not be received by the superintendent at a rate above their par value; the stocks and securities so deposited may be exchanged from time to time for other like securities; so long as the company so depositing continues solvent and complies with the laws of this state, it shall be permitted by the superintendent to collect the interest or dividends on such deposits; and for the purpose of this chapter the capital of any foreign company doing fire insurance business in this state shall be deemed to be the aggregate value of its deposits with the insurance or other departments of this state and of the other states of the United States, for the benefit of policy holders in this state, or in the United States, and its assets and investments in the United States, certified according to the provisions of this chapter; but such assets and investments must be held within the United States and invested in and held by trustees, who must be citizens of the United States, appointed by the board of directors of the company, rule all moneys, credits, investments in and approved by the insurance commissioner | of the state where invested, for the benefit of the policy holders and creditors in the United States; and the trustees so chosen may take, hold, and convey real and personal property for the purpose of the trust, subject to the same restrictions as companies of this state." [91 v. 40; 70 v. 147, § 21; (S. & S. 212).]

This statute, therefore, provides for the manner of investment of a portion of the capital stock of a foreign insurance company within the state of Ohio for the protection of the policy holders within the state. It is more than a mere "investment in bonds." It is also a part of the capital stock required to be deposited as a condition of doing business within the state, and devoted to the benefit of local stockholders.

The authority to enact laws for the imposition of taxes is found in the Constitution of the state, article 12, § 2, which provides: "Laws shall be passed, taxing by a uniform

bonds, stocks, joint stock companies, or otherwise; and also all real and personal property, according to its true value in money."

Section 2731 provides, in language similar to that used in the Constitution, for the taxation of all property, real and personal, in the state, and all moneys, credits, investments in bonds, stock, or otherwise, of persons residing in the state. This section is found in the first chapter of Title 13, "Taxation," of the Ohio Statutes, and is in part in the following language:

This section is part of the chapter of the Ohio statutes regulating insurance companies other than life. In the same chapter may be found other sections regulating the 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 belongvision 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 bonds, 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. §§ 3593, 3595), and with- title." out such deposit are not authorized to do business within the state. As a condition of doing business in Ohio, companies organized under the laws of foreign governments are, by § 3660, required to invest a portion of their capital in the stock or bonds of the United States or of the state of Ohio, or some municipality or county thereof, and make deposit of such bonds with the superintendent of insurance for the benefit of lo

The argument for the insurance company is, that this preliminary section, read with the other sections of the Ohio law upon the subject, excludes "investment in bonds" from being embraced in a general description of personal property, and limits their taxation to persons residing in the state, or (under § 2730) where they are held within the state for others by persons residing therein.

Section 2730 of the same chapter is a section giving definitions of terms used in the title. So far as it is pertinent in this connection, that section is as follows:

"Sec. 2730. The terms '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."

If these sections embraced all the statutory law of the state, together, they tax investments in bonds held by residents, because of jurisdiction over the person of the owner, and those held by residents for other owners, and if such reside out of the state, because of jurisdiction over the property held within the state.

Section 2744 undertakes to make provision for the taxation of corporations generally, and is as follows:

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 necessary blanks for the purpose of making aforesaid returns; but no neglect or failure on the part of the county auditor to furnish such blanks shall excuse any such president, secretary, principal accountant, or agent from making the returns within the time specified herein. If the county auditor to whom returns are made is of the opinion that false or incorrect valuations have been made, or that the property of the corporation or association has not been listed at its full value, or that it has not been listed in the location where it properly belongs, or in cases where no return has been made to the county auditor, he is hereby required to proceed to have the same valued and assessed: Provided, That nothing in this section shall be so construed as to tax any stock or interest in any joint stock company held by the state." [73 v. 139, § 16; (S. & C. 1446).]

The supreme court of Ohio has expressly held that this section applies to foreign as well as domestic corporations. Hubbard v. Brush, 61 Ohio St. 252, 55 N. E. 829; Lander v. Burke, 65 Ohio St. 532-542, 63 N. E. 69.

"Sec. 2744. [Corporations generally; their returns.]—The president, secretary, and principal accounting officer of every canal or This section is broad in its terms, and reslackwater navigation company, turnpike quires the return of the property, among company, 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, verified by the oath of the person its actual value in money.' 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 property in said ward, city, village, or township, and all property so listed shall be subject to and pay the same taxes as other property listed in such ward, city, village, 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

This section, therefore, requires of both foreign and domestic insurance companies that they return the personal property mentioned which is within the state. What is meant by "personal property," in this connection? nection? Referring to § 2730 we find it provided that the terms "personal property," when used in the title, shall be held to mean and include, among other things, the capital stock, undivided profits, and all other means not forming a part of the capital stock of every company.

In the case of domestic corporations, and assuming that this statute applies, as has been held by the supreme court of Ohio, with equal force to foreign corporations, this definition of personal property must be held to include not only the paid-in capital stock of the company, but as well the bonds or securities in which it may be invested.

This question was before the supreme | consideration of the case before us. court of Ohio in Jones v. Davis, 35 Ohio St. 474.

In that case the act of May 11, 1878, was before the court. It contained provisions similar to those of the Revised Statutes, requiring personal property of every description, moneys and credits, investments in bonds, stock, joint-stock companies, or otherwise, to be listed in the name of the person who is the owner thereof on the day preceding the second Monday of April in each year. Section 11 of that act made provisions similar to those found in § 2744, requiring incorporated companies to list for taxation all their personal property which, by the terms of the statute, was made to include all such real estate as was necessary to the daily operation of the company, and all its moneys and credits within the state at their actual value in money. After citing Bank Tax Case, 2 Wall. 208, 17 L. ed. 795, and Farrington v. Tennessee, 95 U. S. 686, 24 L. ed. 560, Judge Boynton, delivering the opinion of the court, said:

"For the purposes of taxation, the capital stock is represented by whatever it is invested in. Personal property, by the express wording of the statute, is made to include the capital stock of a corporation; and the provision above referred to requires all corporations doing business in this state, except banking and others whose taxation is specifically provided for, to list all their personal property, including in the return thereof all such real estate as is necessary to the daily operation of their business, together with their moneys and credits of every description within the state. That the legislature intended, by this description of property, to embrace the capital stock of the company, is too obvious to be misunderstood. No other meaning can be drawn from the language employed, and no other construction is better calculated to do justice." In Lee v. Sturges, 46 Ohio St. 153, 160, 2 L. R. A. 556, 558, 19 N. E. 560, 564, Judge Spear, speaking for the court, said:

"It may be assumed that 'capital stock' and 'capital and property' mean practically the same thing. Primarily the 'capital stock' is the money paid in by the stockholders. in compliance with the terms of their subscriptions. It soon, however, takes the form of real estate or personal property, or both, including machinery, buildings, credits, rights in action, etc. So that it may here be taken to mean personal property, and such real estate as may be necessary to the daily operations of the company, and its moneys and credits. The capital is thus represented by the property in which it has been invested."

While

technically the bonds deposited with the insurance commissioner are investments in bonds, they are also a part of the capital stock of the company invested in Ohio, and required to be so invested for the security of domestic policy holders, and, for the purposes of taxation, to be considered a part of the capital stock of the company, and included within the definition of "personal property," as given in § 2730.

This conclusion is reinforced by the decision in Hubbard v. Brush, 61 Ohio St. 252, 55 N. E. 829. 55 N. E. 829. In that case the supreme court of Ohio held that a foreign corporation transacting business in Ohio was required to return its property within the state where it was carrying on business, although the corporation was organized under the laws of West Virginia.

The court admitted that the situs of intangible property is ordinarily at the local residence of the corporation, within the state where it was incorporated. Nevertheless, as the promissory notes and book accounts and other evidence of indebtedness must be presumed to have been in the company's office in this state, they were taxable as personal property under § 2744.

In the course of the opinion Judge Bradbury said:

"Where foreign corporations voluntarily bring their property and business into this state to avail themselves of advantages found here, which they believe will enhance the probabilities that the business they intend to pursue will be profitable, they should not be heard to complain of laws which tax them as domestic corporations are taxed by the state. We hold, therefore, that the provisions of § 2744, which make it the duty of foreign corporations to list for taxation in this state their choses in action, where they are held within this state and grow out of the business they conduct herein, is a valid exercise of the taxing powers vested in the state."

Under § 2744, corporations, foreign and domestic, are required to return all personal property for taxation, which, among other things, the statute expressly declares shall include moneys and credits of such company or corporation within the state. If the construction contended for shall prevail, a corporation, with capital invested in bonds, would escape taxation, while one holding its investments in notes or certificates of deposit in bank will be compelled to return them for taxation,-a condition of things so manifestly unjust that we cannot hold it to have been within the intent of the legislature in framing taxing laws unless the statutes clearly admit of no other We think this language pertinent in the construction. The purpose of the Ohio Con

stitution and statutes passed in pursuance | be held to require a return of these bonds thereof, as has been frequently declared by the supreme court of Ohio, is to tax, by a uniform rule, all property owned or held within the state. A narrow construction, which will defeat this purpose, should not be adopted.

The statutes, specifically mentioning "investments in bonds," were intended to reach and tax, and not to exempt, that class of personal property. The purpose to tax all real and personal property, declared in the statute, was further emphasized by express mention of certain classes of property, such as investments in bonds, so that, by no process of exclusion, could such securities escape the burdens imposed upon all property owned or held within the state.

by the insurance company, that the company comes within the exception of the statute excluding banking or other corporations whose taxation is specifically provided for in other parts of the title. And it is argued that § 2745 of the Revised Statutes of Ohio makes express provision for the taxation of foreign insurance companies.

Examination of this section shows that it imposes a tax upon the business of the company in Ohio, and is not a property but a privilege tax. Insurance companies are required to return in each county the amount of the gross premium receipts of its agency for the previous calendar year, and, under certain regulations, the company is taxed upon the amount of business done.

This section does not levy a tax upon property. There are subsequent statutory

the exception of § 2744 may operate, taxing the property of railroad companies, banks, express, telegraph, and telephone companies, etc., but there is no other provision imposing a property tax upon foreign insurance companies within the state.

The sections taxing individuals holding such securities were not intended to put limitations upon other sections of the law tax-provisions of a special character, upon which ing the property of corporations held within the state, and enjoying the protection of its laws, and affording a basis for credit in the transacting of business. There is no reason why the law should tax such securities in the hands of individual residents, whether owned or held by them for others, and permit then to escape taxation when they represent invested capital of incorporated companies, sharing the protection of the government and equally bound, in morals, at least, to help bear the burdens of the state.

That such securities might justly be taxed was freely admitted in the argument at bar, and the sole contention was that the lack of statutory power to tax these securities is a casus omnissus in legislation which the courts cannot supply.

It may be conceded that no tax can be levied without express authority of law, but the statutes are to receive a reasonable construction with a view to carrying out their purpose and intent.

The requirement that these bonds should be deposited for the security of the local policy holders brought a part of the capital of such company into the state of Ohio, upon the strength of which it transacts its business and obtains credit within the state. Clearly, such property is not intended to be taxed within the provisions reaching the business done in the state of Ohio under § 2745.

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 § 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 § 2735, making provision for the place of listing personal property, provides:

We have examined the decisions of the supreme court of Ohio, cited by counsel, construing the statutes of the state, and believe 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. Section 2731, standing alone, might limit the right to tax investments in bonds to residents of the state. It is certainly enlarged by § 2730 to include such investments when held for others by residents within the state. Read with §§ 2734, 2735, 2744, and 2746, we think the purpose is manifest to require the 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

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 list

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

sition of this tax, where the nontaxable securities were substituted before the return day.

"Sec. 1095. [Overdue taxes may be col-time which were taxable justified the impolected 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 property 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. Den | ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 276, 15 L. ed. 372, 374; Springer v. United States, 102 U. S. 586, 26 L. ed. 253; Cooley, Taxn. 302; Palmer v. McMahon, 133 U. S. 660, 33 L. ed. 772, 10 Sup. Ct. Rep. 324.

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 for this purpose. If there is no personal liability for these taxes,-a point which we do not feel called upon to decide,-it 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. U. S. Rev. Stat. § 723, U. S. Comp. Stat. 1901, p. 583; Phoenix Mut. L. Ins. Co. v. Bailey, 13 Wall. 616-623, 20 L. ed. 501-503; Grand Chute v. Winegar, 15 Wall. 373, 21 L. ed. 174; Deweese v. Reinhard, 165 U. S. 386, 41 L. ed. 757, 17 Sup. Ct. Rep. 340.

Upon the whole case we reach the conclusion that the circuit court was right in sustaining 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.

HAMBURG

(196 U. S. 407) STEAMSHIP

AMERICAN
COMPANY, Plff. in Err.,

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 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, 44 L. MINNIE ed. 701, 20 Sup. Ct. Rep. 585; Marye v. Baltimore & O. R. Co. 127 U. S. 117, 32 L. ed. 94, 8 Sup. Ct. Rep. 1037.

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

v.

GRUBE, as Administratrix of
John Grube, Deceased.

Error to state court-Federal question-
cession to United States-effect of state
laws.

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