State ex rel. Dwinnell v. Gaylord

41 N.W. 521, 73 Wis. 316, 1889 Wisc. LEXIS 166

Opinion

Oassoday, J.

Some of the questions presented in this case were also involved in State ex rel. Smith v. Gaylord, ante, p. 306, and are fully considered in the opinion of Mr. Justice Out ON filed herewith. In this case, therefore, we. will confine ourselves to questions not there considered.

1. It is claimed that the board of review was illegally constituted; that the two supervisors, Isham and Norris, acted as members of such board without authority of law; that as the assessor, Wylie, was excused from voting, the action of the board complained of was only by two legally constituted members. Sec. 1, ch. 153, P. & L. Laws of 1857, as amended by sec. 1, ch. 133, P. & L. Laws of 1858, provided that “ the inhabitants of the district of country included in the limits and boundaries of the town now known as the ‘Town of Elkhorn,’ in the county of Walworth, are hereby created a body corporate and politic, by the name and style of ‘ The Tillage of Elkhorn,’ . . and shall be competent to have and exercise all the rights, and be subject to all the liabilities and duties, appertaining to a municipal corporation, and 'shall have and exercise all’the rights and be subject to all the liabilities of the inhabitants of the several towns in this state. . . . The elective officers of said corporation shall be three supervisors, one of whom shall be designated as chairman, one assessor, one clerk, one treasurer, one superintendent of schools, four justices of the peace, and two constables, who shall be elected at the same time and in the same manner, and shall severally have and exerei.se all the poqners, and be subject to- and perform all the duties and liabilities, prescribed hj statute in reference to said several designated officers in the several towns of this state. . . .” At that time “each assessor ” was to appear at a time and place named, “ for the purpose of reviewing his assessment,” and was to “continue such review from day to day so long as ” should be necessary for that purpose. Sec. 32, ch. 18, R. S. 1858. Such assessor at the time, therefore, was the only officer authorized to review such assessment. But the act so incorporating the inhabitants of the whole town of Elkhorn into such village clearly intended by the language quoted, not only that the several elective officers therein named should have and exercise the same powers and duties then prescribed by statute in reference to said several designated officers in the several towns, but also such as might at any time subsequently be prescribed by statute in reference thereto in the several towns; in other words, that said village should at all times thereafter, with respect to the powers and duties of such elective officers therein named, stand on the same footing as such several designated officers in the several towns. ' Any other construction would create endless confusion, when the manifest' purpose was to prevent any confusion. The result is that the statutes respecting such boards of review are applicable to the village of Elkhorn.

The statute provides and for a long time has provided that “ the supervisors, elerh, and assessors of each, town, the mayor, clerk, and assessors of each city, the'president, clerk, and assessors of each village in which taxes are assessed and collected independently of the town, shall constitute a board of review for such town, city, or village. ... A majority shall constitute a quorum.” Sec. 1060, R. S., and ch. 74, Laws of 1881. Elkhorn, obviously, is not a village, in which taxes are assessed and collected independently of the town, but one which in many respects is on the' same footing as a town, but with increased or- enlarged municipal powers. It has-no president in name, but the chairman of the board of supervisors exercises corresponding powers. It follows that the board of review in question was legally constituted. The mere fact that the assessor was excused from voting is of no significance.

2. It is strenuously urged that the moneys, notes, and mortgages in the hands of the, relator’s agent in Nebraska were not taxable in Elkhorn, where he resided. An able brief is presented, and numerous authorities are cited in support of such contention. We do not feel called upon to analyze and harmonize the numerous cages cited. Counsel is undoubtedly correct in claiming that taxes are only to be levied upon such property as the legislature may prescribe. Sec. 1, art. VIII, Const. The question, therefore, is whether monej’s, notes, or notes secured by mortgages on lands in another state, owned by a resident of this state, but in the hands of an agent in such other state for the purpose of being loaned, collected, and reloaned, are among the classes of property prescribed for taxation in the taxing district of such owner’s residence. Taxes must be levied upon all property in this state except such as is exempted therefrom. Sec. 1034, N. S. The classes of property so exempted are enumerated in sec. 1038, R. S. None of the property here in question is enumerated in that section. The term “ personal property,” as used in the “ title ” of the Nevised Statutes on “ Taxation,” must “ be construed to mean and include ... all debts due from solvent debtors, whether on account, note, contract, bond, mortgage, or other security, or whether such debts are due or to become due.” Sec. 1036. All personal property must be assessed in the assessment district where the owner resides, except as otherwise provided by statute. Sec. 1040, E. S., and ch. 354, Laws of 1883. No statute provides for the assessment of the classes of property in question in any other than the district of the owner’s residence. The owner of personal propertj^ is to include in his statement thereof, under oath, “the average amount of such money, notes, bonds, mortgages or other securities owned or held by him,” etc. Sec. 1056, E. S. No exception is made as to the residence of the debtor, or the location or possession of the evidence of such indebtedness. The substance of it is that if such resident of this state owns such moneys, notes, bonds, mortgages, or other securities, then he is required to list them for taxation, if they are taxable under the statutes. Whether they are taxable or not depends upon whether such credits are property within this state. The statutes expressly declare them to be property. The question, therefore, narrows down to this: whether such credits, belonging to such resident, are property in this state, within the’meaning of the statute. It must bo conceded that the taxing laws of the state have no extraterritorial operation. Such notes and mortgages, however, are mere evidences of indebtedness. The destruction of such evidences does not necessarily extinguish the debts. They are merely choses or things in action. Such mere credits have no other situs than the domicile of the owner, unless made so by statute. As observed by counsel for the village, in the case of such intangible species of property the thing that is valuable is “the right of the creditor to receive property or money ” and to enforce such right by action in court. "When, as here, there is an absence of any statute prescribing a different rule, and an absence of any evidence of any injustice by reason of double taxation, we must hold, under our statutes cited, that, for the purposes of taxation, a debt has its situs at the residence of the creditor, and may be taxed there. This ruling is certainly supported by the great weight of authority. State v. Darcy, 16 Atl. Rep. (N. J.), 160; Comm. v. American Dredging Co. 15 Atl. Rep. (Pa.), 443; Worthington v. Sebastian, 25 Ohio St. 1; Bradley v. Bauder, 36 Ohio St. 28; Kirtland v. Hotchkiss, 100 U. S. 491; and the numerous cases cited by Mr. Freeman in 5G Am. Dec. 521-530. As will there appear, in some states exceptions are made where such evidences of debt are held in another state in such a way as to acquire a situs there. Such cases are urged upon us with much force by the learned counsel for the relator, but we decline to follow them; and, besides, the evidence does not squarely bring the case within the rulings of some of those cases.

3. The evidence seems to be sufficient to sustain the action of the board of review.

By the Court.— The judgment of the circuit court is affirmed.