The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-03-07
CAN NOT TAX MORTGAGES.
Osborne Lawyer Puts New Construc-
ton on Tax Law.

ger Of Osborne, Kan, in a COM
munication to the State Journal. holds
that under the new assessment and
taxation law, mortgages, notes and
other similar properly can not law
fully be taxed
This Is a most radical difference
from the Interpretation of the law
given by the state tax commission.
The tax commission has given me
assessors full Instructions for the as
Sessment and taxation of all mort
cages, notes, monies. ETC.
Mr.. Towne says in his letter that
he Is not advised as 10 amendments
made to the taxation law at the spec
ial session, and that his opinion is
based on the law as originally en-
acted. Mr.. TONNES opinion follows:
The act in question repeats section
1903 of the statutes or 1907, GLASS;
ler's Gen. ST. but re-enacts that sec
ton except some clauses thereof. By
section 1902. "All property in this
state, real and personal, not expressly
exempt therefrom. shall be subject to
taxation" Section 1903 under the
old act. section 1 of Oh, 40S, laws of
1907 comprise the respective "defni-
tionS of terms" in those enactments
30 that the property subject to taxa
ton under 1902 must be understood
in the light of the limita tons ex-
pressed in the new section of diednf-
lions. AS to personally the new act
follows the old act in the description
of the same in its phraseology except
In some particulars, the omission of
which cannot but be significant. The
new aot says: "The term personal
! property shall include every tangible
thing which is the subject of owner
real property" this follows the old
act so far only. It leaves out the
following important words, which are
excised from the law; "also all tax
sale certificates, Judgments, notes,
bonds and mortgages, and all evil
real estate;'' then the old act is fol-
lowed verbatim down to the eighth
line from the bottom of page 1916
of general statutes 1901, where from
and including the word whether
! in that line to and including the word
''estate" in the first line of page 1917.
the whole matter Is expunged, which
briefly. leaves out all deposits whether
IN bank or otherwise, and all 'tcred-
its demands of every kind not Sc
cured by real estate Heno from the
purview of the new act. To a fur
Their expression as to personal prop
erty' as used in a general sense, the
qualifying words "as hereinbefore |
Defined are added.
The taxable personality, therefore, |
is only that which is tangible" The |
excisions and addition noted clearly |
exclude from being objects to the tax |
ing function. all personal property in |
the nature OF tokens or chooses in |
action" to employ the technical COM
mon law expression. Tangible" is |
an adjective of a well understood |
and clearly defined Specification. 1t |
means that which is perceptible to the |
touch and sight. The standard die |
tionary gives as its legal sense: |
"Perceptible to the senses; corporal; |
as tangible property; opposed to in
corporeal property, such as fran |
chises, rents, etc. Blacks law die |
tionary defines tangible property as |
property which may be touched; |
such as is perceptible 70 the senses; /!
corporal property, whether real or
gives as his definition of "incorpor-
cal property in the civil law: ''That
which consists in legal right merely |
The same as chooses in action at com
mon law" See Black L. D. also. titles
"Incorporeal," "Corporeal," Cor
Blackstone. Com $50. 8s7; Chit
Pr SO.
OF personal property incorporeal, |
which clearly includes notes, mort
cages, and in fine all those things
omitted in the act of 1907, adverted |
to above. the supreme court of New |
York says in the Phipps case: "a
mere chose in action. a right to re-
cover a sum of money, has never yet
been given the attribute of tangi-
bility." ~ Hun. 235; % N. Y. Supp,
$50. This case was affirmed at gen
eral term of the court of appeals,
143 N. Y. SAL.
Mortgages notes. etc., are mere
chooses in action, and by all accepted
definitions, are not included in things
tangible" consequently it would
seem that the legislature by emitting
the enumeration of those items Of the
old act above noted, manifestly in
tended to render subject to taxation
only such personal property as may be
tactible and has Independent cor
poreaI existence, and to exclude all
rights
Section 5706 of the statutes of 1901,
which provides for listing personal
property, it would also seem, should
be read in Dari materia with the
reasonable construction would assume
That that portion expressed by the
words "or subject to his order, check
or draft, and all credits due or to be-
come due from any person, company,
or corporation is imperative. for.
under the definition thus statutoriIy
expressed, those particulars would be
wholly superfiuous. because such
stems are not taxable. The constitu-
tional provision (Kansas constitution,
article IL section p Is manifestly
not self executory. so that upon the
whole, there does not seem under the
cot of 1907. or prior provisions still
operative, any legal basis for the
taxation or listing of mortgages
bonds. judgments, notes, credits. or
any other kind of personality. not
strictly tangible or corporal.
The foregoing is not stated as an
ultimate opinion, but the principles
are SO well established. that in the
absence of direct authority to the
contrary, the existence of which is
extremely doubtful. as the hurried.
though somewhat extensive search
which have been able to make. has
failed to disclose any reference there
to. I am fmpelled to think that in
corporal personal property is not