#### Vachel Worthington and Julia Worthington his wife *v.*John Sebastian, Treasurer of Hamilton County.

1. Investments in bonds and stocks of foreign corporations by residents of Ohio may lawfully be taxed in Ohio; and the provisions of the act of April 5, 1859 (2 S. & C. 1438),'imposing a tax on such bonds and stocks, are not in violation of the federal or state constitution.

Reserved in the District Court of Hamilton county.

The original petition in this action was filed in Hamilton Common Pleas on the 28d of November, 1869. It sets out the following facts:

“The said Julia, for whose sole use this action is brought, has owned bonds of the Indianapolis and Cincinnati Railroad Company, of the nominal value of $11,500, since September, *21864. This railroad company is a corporation of the State of Indiana, owning and operating a railroad between the cities of Lawrenceburg and Indianapolis, in that state. In accordance with its charter, the company issued a series of bonds, of which those owned by Mrs. Worthington are a part, payable, principal and interest, in the city of New York, and secured by a mortgage upon the railroad and all its equipments.

In the list of personal property subject to taxation, returned by Mrs. Worthington to the auditor of Hamilton county, in April, 1865, these bonds did not appear, as she believed they were not taxable in Ohio. Afterward, however, upon the special requisition of the auditor, she returned to him the nominal value ofthebonds — viz., $11,500— and he fixed their real value in money at $5,520. Since that time she has returned these bonds at the valuation made by the auditor. They were so returned in 1868, and in that year the amount of the tax assessed upon the bonds was $154.56. This amount was paid, half on the 12th of December, 1868, remainder on the 16th of June, 1869.”

The petition then charges that this tax was illegally assessed, levied, and collected; that the defendant was treasurer of Hamilton county at the times of the collection of the tax, and that as such treasurer he made the collection ; and it prays judgment against him for the amount thus paid, with interest from the dates of payment.

The court sustained a demurrer to this petition, on the ground that it did not set forth facts sufficient to constitute a cause of action, and rendered judgment dismissing the ¡petition. To reverse this judgment, a petition in error was filed in the District Court, and reserved by that court for 'decision here.

*V. Worthington*and *Wm. Worthington,*for plaintiffs in error:

I. The State of Ohio can not tax her people upon their investments in the stocks and bonds of other states, or of 'corporations of other states.

*3Property is the sole basis of taxation, and is to be taxed through itself and not through the owner. *C. W. § Z. R. R. Co.*v. *Clinton*County, 1 Ohio St. 103; *Exchange*Bank v. *Hines,*3 Ohio St. 10; *The City of Zanesville*v. *Auditor of Muskingum Co.,*5 Ohio St. 592; *Baker*v. *Cincinnati,*11 Ohio St. 540; *Cincinnati Gas L. § C. Co.*v. *The State,*18 Ohio St. 242; *State*v. *Gazley,*5 Ohio, 21.

II. There can be no question as to the meaning of the language in the constitution. It designates for taxation-all moneys of the state, all credits of the state, all investments in bonds, stocks, joint stock companies, or otherwise, of the state, and also all real and personal property of the state, regardless of the owner, whether resident or nonresident, it matters not. All property in the state, within its jurisdiction and under its control, is taxable by the state for general revenue. For this purpose the state has a lien upon property, and the owner, be he resident or nonresident, holds his property subject to this lien, and thus becomes connected with the tax power.

If we keep in view the simple fact that the state, under the constitution, is confined to the property of the state as designated, we can readily ascertain the taxables of the state. 1. *All moneys tobe found in the state.*No moneys in other states can be reached. This is the first item. 2. *All credits to be found in the state,*but no credits out of the state fall under the tax power — only the credits of the state within its jurisdiction and under its control; credits that it can seize, that it can attach and collect in and by itself, without auxilary aid from other states or other governments. Credits and debts are correlative and go together, and the one is inconceivable without the other. "We are not looking at all for the credits of individuals within or without the state, nor their debts, but for the credits of the state; they alone are subject to the tax power. If.a resident of Ohio has credits in other states, they are not Ohio’s credits, but the credits of those other states.

Investments in bonds, stocks, joint stock companies, etc., of Ohio — that is, bonds and stocks issued by it or under its *4authority, and protected by its laws — are the taxables of Ohio. But the bonds and stocks of other states or other governments, or issued under their authority and protected by their laws, are not its taxables. It matters not who owns these bonds or stocks, nor where the owner resides. The state, under the constitution, can tax only those it issues or authorizes and protects. All others are beyond its control and not taxable under its laws. Real and personal property in the state is alone taxable by the state, and it matters not where the owner resides. It never has been pretended the state.cau tax the real and tangible personal property of its people in other states or territories, either under the old or present constitution.

The state can not tax real or personal property, money, bonds, stocks, etc., nor any property, right, or interest in either, which it can not forfeit and confiscate, if the taxes are not paid. It can only tax what it controls and protects; and what it controls and protects it can forfeit and confiscate, if taxes thereon be not paid as it requires. The court-will recollect the constitution requires the property of the state as specified to be taxed; the owners of that property are reached through the property taxed, and not the property through the owners. *Dobbins*v. *Erie County,*16 Peters, 446; *Owen*v. *Miller,*10 Ohio St. 141.

Stocks and bonds are attributes, and located with their principals. *Fletcher*v. *Morey,*2 Story, 565.

The plaintiff’s property in these bonds and stocks is where the things- are; and they are in the state which created the corporations that issued them, which authorized their issue, and which protects and controls all the estate, right, title, and interest any one can have in them, and are the taxables only of that state. *National Bank of New London*v. *L. S. § M. S. R. R.,*21 Ohio St. 221; *Owen*v. *Miller,*10 Ohio St. 136, 141, 144; *Kelly*v. *Crapo,*45 N. Y. 86; *Willits*v. *Waite,*25 N. Y. 577; *Catlin*v. *Hull,*21 Vt. 152, 159; Story’s Conflict of Laws, 462; *McCulloch*v. *Maryland,*4 Wheat. 429; 1 Kent, 426; *Jackson*v. *The State,*15 Ohio, 652; *Madison*v. *Fitch,*18 Ind. 33; *Powell v. Madison,*
      *521 Ind. 335; *Sprague*v. *Lisbon,*30 Conn. 18; *Bank of U. S. of Penn.*v. *Mississippi,*12 Smede & Marshall, 457; *Providence Bank*v. *Billings,*4 Pet. 563; *Faxton*v. *McCosh,*12 Iowa, 527; 99 Mass. 148; 100 Mass. 531; 2 California, 590; 17 Howard, 596; 3 Howard, 483; 60 Penn. St. 325; 23 N. Y. 224; 7 Wallace, 150; Ib. 262; 48 N. Y. 397; 51 Barb. 352.

*Scarborough § Williams,*for defendant:

The provisions of the tax law for the taxation of investments, of persons residing in Ohio, in bonds and stocks of corporations of other states, are in harmony with the constitution of the state.

In the tax law of 1846, property was first made in our State “ the sole basis of taxation,” and under it the principle was successfully introduced of taxing all property, and property alone, at the same rate and under uniform law's. 44 Ohio L. 85, secs. 1, 2, 10. It provided for taxing shares or portions in the capital stock in any corporation belonging to persons residing in the state; defined money “ to mean and include gold and silver coin and bank-notes, in actual possession, and every deposit which the person . . . is entitled to withdraw, in money, on demand;” defined credits “ to mean and include every claim or de.mand for money, labor, or other valuable thing, due or to become due,” etc.; and in its first section provided, aside from specified exemptions, that all tangible property within the state, excepting money, should be subject to taxation, and also all moneys and credits of persons residing in the state. The obvious import of this provision is, that no tangible property, excepting money, was to be taxed, unless within the state ; and that all such property, when within the state, should be taxed, whether owned by a resident or not; and also that all moneys and credits of persons residing in the state should be taxable, irrespective of the *situs*of the money or the residence of the debtor.

This construction was at once put upon the law throughout the state, and stocks and bonds of corporations of other states, belonging to persons residing in this state, and *6credits of residents in this state given to non-residents, were everywhere taxed. The terms of this law and the practice under it were familiar to the convention that framed the constitution and to the people who approved it.

At the first session of the general assembly under the constitution, the tax law of 1852 was enacted. 50 Ohio L. 138. It was the law of 1846 revised, with numerous changes and amendments. The warp and much of the woof of the old law, however, remained, and are yet to be found in the tax law of 1859. The provisions of the latter, now claimed to be unconstitutional, are substantially borrowed from the law of 1846, and are, as already stated, identical with those in the same sections of the law of 1852

1. The language of the constitution is general, not limiting the term “ moneys ” to those within the state, nor the term “ credits ” to those given to debtors residing in the state, nor the terms “ investments in bonds ” and “ investments in stocks,” to bonds and stocks of the corporations of the state. Such a limitation, we submit, can not be injected into it by construction, and especially in view of the fixed signification that some of these terms had in the tax law then in force. *Turney*v. *Yeoman,*14 Ohio, 207; *Anderson*v. *Millikin, 9*Ohio St. 568, 571, 572, 579.

2. Its interpretation, unless there is weighty reason to the contrary, should be in accordance with the ordinary literal and obvious meaning of the language used, as the people may fairly be presumed to have understood it — as it was practically interpreted by them immediately after its adoption, and as it has been ever since. *Lehman*v. *McBride,*15 Ohio St. 602; *State ex rel. Att'y-Gen’l v. Kennon,*7 Ib. 563-566; *Anderson*v. *Millikin,*9 Ib. 570-579.

All property belonging in Ohio is taxable in Ohio. We say so, because the constitution declares that “ laws shall be passed taxing, by a uniform rule, all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise,” without adding either the words “ of the state,” or “within the state,” and because there may be, and always is, a great deal of property in the state, tangible *7and intangible, that does not belong, and is not taxable here, and because property belonging and taxable here, may be temporarily absent.

In making “ property the basis and sole basis of taxation, . . . the object being equality and fairness,” the constitution, in the multiplied terms it uses to describe property, makes clear its purpose that *all*property shall be taxed. *Exchange Bank*v. *Hines,*3 Ohio St. 14; *Baker*v. *Cincinnati,*11 Ohio St. 541.

As to credits, they can not be said to have any fixed *situs,*but it is text-book law that they follow the person of the owner, and have a constructive status at his domicile. *Catlin*v. *Hull*stands upon an exception to this rule. *Thomas, Guardian,*v. *Mason County Court,*4 Bush. (Ky.) 135; *McKean*v. *County of Northampton,*49 Penn. St. 519; *In re Short’s Estate,*16 Penn. St. 63; 15 Wallace, 300; 16 Pick. 572; 12 Allen, 316.

If, as counsel for plaintiff insist, “ the constitution authorizes the state to tax its credits, and its credits consist of the debts of its people to residents and non-residents, both are embraced;” then the residence of the debtor is the place of taxation, and the more a place owes, the larger should be its duplicate.

Property is not taxable because it can be seized, but it is subject to seizure, is taxable, if its owner has failed to pay his taxes according to law. S. & C. 1459, sec. 53. If taxes can be levied and assessed on property only that can be seized, then a large share of the personal property taxes are illegal.

Welch, J.

The case presents two questions: 1. Were these taxes legally and constitutionally assessed ? 2. If so, are the plaintiffs entitled to recover them back from the treasurer ?

The taxes were assessed under the act of April 5, 1859, (S. & C. 1438), and it is not denied that the assessments were made in conformity to the requirements and provisions of that act. The act subjects to taxation “ all moneys, *8credits, investments in bonds, stocks,” etc., “ of persons *residing*” *in the*state, and especially declares that the terms “stocks” and “bonds” shall apply as well to stocks and bonds issued outside of the state, as to those issued in the state.

What the plaintiffs’ counsel contend for is, that such bonds and stocks can not legally be subjected to taxation, except in the state where they are issued, and that, therefore, this act of April 5, 1859, in so far as it assumes to impose a tax on foreign bonds, is unconstitutional and void. They claim that section 2 of article 12 of the state constitution, rightly interpreted, does not authorize such a tax, or if it does authorize such a tax, then that this section of the state constitution is in violation of. the constitution of the United States. Section 2, article 12, of the state constitution, merely names the subjects of taxation, and makes no limitation as to their *situs,*or ownership. The subjects of taxation so named are “ moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise,” and also “ real and personal property.” It declares that “ all ” these subjects so named (except certain exempted items, which have no relation to the present case), shall be taxed “ by a uniform rule.”

The question so elaborately argued by counsel — namely, whether the state can, under this section of the constitution,, and without violation of the federal constitution, tax *real estate, or tangible*personal property, whose actual *situs*is without the state — does not arise in the ease. The act under which these taxes were assessed, does not assume to impose any such tax ; nor, so far as I know, has any law of the state ever assumed to do so. Our system of *ad valorem*taxation has uniformly proceeded upon the theory, that *torngible*property is to be taxed according to the law of the place where it is situated, irrespective of the residence of its *owner;*while, with equal uniformity, it has proceeded upon the theory that “ credits,” “ investments in bonds,” “ stocks,”’ etc., are taxable according to the laws of the place where their owners or holders reside. Our *ad*
      *9
      *valorem*system of taxation was first established by the act of 1846 (vol. 44, p. 85). That act was in force at the time the present constitution was adopted, and was fully and favorably known to the people of Ohio. By that law tangible property was not subjected to taxation unless situated “ within the state;” but “ stocks ” of persons “ *residing in the state,”*and “credits” of persons .residing in the state, including “ every claim or demand for money, labor, or other valuable thing, due, or to become due,” were subjected to taxation. So far as questions in this case are concerned, the section of the constitution in question is a substantial embodiment of the provisions of that act, the only material difference being, that the law of 1846 limits the right to tax tangible property to cases where it is located within the state, while the constitution contains no such limitation. Both agree, however, in taxing resident owners of *intangible*property, irrespective of its real or constructive sit*us.*

The statute of 1852 (vol. 50, p. 138), enacted at the first session of the general assembly after the adoption of the present constitution, is substantially similar in this respect to that of 1846, and likewise to that of 1859, under which these taxes were assessed; in other words, for nearly a third of a century, and ever since we have had an *ad valorem*system of taxation, the people of the state have acquiesced in the policy of taxing resident owners of credits, notes, bonds, stocks, and the like, without regard to the residence of the *debtor,*or the place where the securities are issued or made payable. Under such circumstances it is very plain tó us that it could not have been the intention, by section 2 article 12 of the present constitution, to-prohibit the imposition of such a tax. If the imposition of such a tax is prohibited, it must be prohibited by something outside of the state constitution.

The argument of counsel is: 1. That property must be taxed by the law of its *situs;*and, 2. That the *situs*of credits, bonds, etc., is the place of the debtor, obligor, or maker. This latter proposition we deny, without express*10ing any opinion as to the former. Intangible property has no actual *situs.*If, for purposes of taxation, we assign it a legal *situs,*surely that *situs*.should be the place where it is *oioned,*and not the place where it is *owed.*It is incapable of a separate *situs,*and must follow the *situs*either of the creditor or the debtor. - To make it follow the residence of the latter, is to tax the debtor and not the creditor, to tax poverty instead of wealth.

That it is the creditor, and not the debtor that is to be taxed, and that the tax is to be imposed by the law of the creditor’s place of residence, and not by the law. of the debtor’s place of residence, seems to be quite well settled by authority. In the case of *The Railroad Co.*v. *Pennsylvania,*15 Wall. (U. S.) 300, the court say:

“ Corporations may be taxed, like natural persons, upon their property and business. But debts owing by corporations, like debts owing by individuals, are not property of the debtors in any sense; they are obligations of the debtors, and only possess value in the hands of the ere 3-itors. With them they are property, and in their hands they may be taxed. To call debts property of the debtors is simply to misuse terms. All the property there can be, in the nature of things, in debts of corporations, belongs to the creditors, to whom they are payable, and follows their domicile, wherever that may be. Their debts can have no locality separate from the parties to whom they are due. This principle might be stated in many different wavs, and supported by citations from numerous adjudications, but no number of authorities, and no forms of expression, could add anything to its obvious truth, which is recognized upon its simple statement.”

See also *The Railroad Co.*v. *Jackson,*7 Id. 265 ; *Thomas*v. *Mason County Court,*4 Bush (Ky.), 135; *McKean*v. *Northampton Co.,*49 Penn. St. 519; *Great Barrington*v. *Berkshire,*16 Pick. 572.

The assessment of the taxes in question being, in our judgment, lawful and constitutional, it becomes unnecessary to consider the other question made in the case.

*11We see no error in the judgment of the Common Pleas, and it must be affirmed.

Similar judgments will be entered in the three other eases argued and submitted at the same time with above—namely, *Valette*v. *Sebastian, Bugher*v. *Sebastian,*and *Lord v. Sebastian.*They involve substantially the same questions—the only difference being that in one of these three cases the subjects of taxation were railroad stocks, instead of railroad bonds; and in the other case, the bonds, the investment in which was so taxed, were not in Ohio at the time of making the assessment, but were in the hands of the plaintiff’s agent, in New* York, where the interest on them was payable. We see no substantial difference between the four cases. ’ The subjects of taxation in all of them clearly fall within the broad language of the constitution — “ *all investments*in bonds, stocks,” etc. — and it is admitted that they arc within the purview of the acts under which the levies were made.

*Judgments accordingly.*