Barnes v. Woodbury

By the Court, Hawley, C. J.: Eleven hundred head of cattle were assessed to and the tax thereon paid by respondent in Eureka county and in White Pine county. He brought this, suit against the assessor of White Pine county to recover the amount of taxes,'paid under protest, upon the assessment of the property in White Pine county. The court overruled a demurrer interposed by appellant and rendered judgment in favor of respondent. This appeal presents the single question whether, upon the facts alleged in the complaint, the cattle were taxable in White Pine county. Under the revenue law of this state it was the duty of the assessor of White Pine county (and of every county assessor) between the first Monday in April and the second Monday in September, to, assess all real estate and personal property “ within his county,” subject to taxation. (Stat. 1861, 65.) If the situs of the cattle was within the county of White Pine, and subject to taxation therein, the demurrer should have been sustained. The laws of every state control, of necessity and of right, all the real and personal property within its borders, and where — 385 — the personal property is of a character visible to the eye of' the taxing power, the legal fiction that personal property follows the residence, of the owner does not apply. This principle is very clearly and forcibly stated in Hoyt v. Commissioners, 23 N. Y. 224, where the domicile of the owner was in one state and the tangible personal property was in another. From an examination of the authorities and a perusal of the revenue laws of this state, it is evident that the situs of the cattle in question is not to be controlled by the mere residence of the owner. A man may reside in Storey county and own real estate within White Pine county, and have cattle kept grazing and cared for thereon, and both the real estate and personal property would be properly assessable in White Pine county. Personal property of this character, unlike “money,” etc., “is to be considered, like real estate, as having a situs of its. own, independent of the domicile of its owner.” (People v. Niles, 35 Cal. 286.) “The truth is, that personal, as well as real estate, has a. locality, although not so permanent, nor always ascertained with so much certainty.” (State v. Falkinburge, 15 N. J. L. 323.) But, by assigning to this class of personal property a situs for the purpose of taxation, independent of the mere residence-of the owner, it does not necessarily follow that the property can be legally assessed in whatever county it may first be-found during the period of assessment. The revenue laws are framed with the idea that there should be a harmonious system to govern and control cases of this character. If a man resides in Eureka and is there engaged in the general business of teaming and delivering freight to various places in other counties, and in the course of his business his team is driven into White Pine county, and is “within” said county when the assessing season commences, and remains therein in the prosecution of his business during the greater portion of the time between the first Monday in April and the second Monday in September, the situs of his team for the pur — 386 — pose of taxation is not, in the sense of the statute, within White Pine county, but it is within the county of Eureka, at the home station where it belongs. In declaring that the county assessor should assess all personal property within his county, it was not intended by the legislature to- authorize him in assessing all the personal property that he could find within his official limits at any time while makingr his assessments. It was only intended to tax such personal property as is actually located or used within his-county “with something like permanency, and not having its-actual location or home somewhere else.” (State v. Haight. 30 N. J. L. 429.) The situs of the cattle must be determined upon the facts alleged in the complaint, viz: “ That during the year A. D. 1881, said plaintiff was not the owner of any real estate in said White Pine county; that-during said year plaintiff was a resident of Eureka county, state of Nevada, and was the owner of and residing upon a. tract of land situated in said Eureka county; that during the years A. D. 1880 and 1881 plaintiff was the owner of a large number of cattle, including the cattle assessed as hereinbefore stated; that the cattle so assessed by defendant, together with a large number of other cattle which were owned by plaintiff, cared for and managed during al'l the times above mentioned upon plaintiff’s said tract of land in said Eureka county, and during the winter months were herded thereon; that said tract of land was at all said times the ‘ home ranch ’ of plaintiff for purpose of herding, caring for and managing said cattle; that on or about April 1, 1881, all of the above mentioned cattle were turned out at said ranch in said Eureka county, and from April 1, 1881, to November 1, 1881, or thereabouts, said cattle were permitted to graze upon the public domain in both said Eureka and White Pine counties; that when the cattle * * * were assessed by said defendant they were grazing within the boundaries of said White Pine county, and at various times did so graze between the first Monday in April to the second Monday in September, 1881.” From these averments it appears that plaintiff’s cattle were,' during the assessing period, “permitted to graze upon the — 387 — public domain in both said Eureka and White Pine counties. ” The mere fact that at the time of the assessment “ they were grazing within the boundaries of said White Pine county, and at various times did so graze ” during the assessing season, ■does not necessarily determine that the cattle were within said county for the purpose of taxation. - Respondent did not own any real estate in White Pine county. He did own, and reside upon, real estate in Eureka county; .where his cattle were cared for and his business conducted. This was his home ranch for the “ purpose of herding, caring for and managing said cattle.” This was where his cattle belonged. They were not abiding within, nor did they belong in, White Pine county, in such a sense as to become incorporated with the wealth of that eounty, or to make them a part of its personal property. The property was, in the eye of the law, within Eureka county for the purpose of taxation, because it belonged there, and it was so situated “ as to make it a part of the wealth of that county.” (Conley v. Chedic, 7 Nev. 341.) These views accord with the general principles announced in many of the decided cases, and are within the meaning, spirit and intent of the revenue laws of this state. By adhering to this rule the system of taxation of property of this kind is, upon just and equitable principles, made harmonious and certain. If the rule contended for by appellant is to prevail, the locality where the property would be assessed would depend entirely upon the will of the owner of - the property, the vigilance of the assessor or collusion, of both. It would lead to endless confusion and uncertainty, if not to the commission of frauds upon the revenue law. In Hays v. The Pacific Mail Steamship Company, the state of California sought to collect a tax levied upon a steamer belonging to defendant and engaged in the business of carrying-freight from New York to San Francisco, via Panama. The supreme court of the United States said: “We are satisfied that the state of California had no jurisdiction over these vessels for the purpose of taxation; they were not properly abiding within its limits, so as to become incorporated with the other personal property of the state; — 388 — they were there but temporarily, engaged in lawful trade and commerce, with their situs at the home port, where the vessels belonged, and where the owners were liable to be taxed for the capital invested, and where the taxes had been paid.” (17 How. 599.) The same doctrine is announced in Morgan v. Parham, 16 Wall. 476. In St. Louis v. The Ferry Company, the controversy related to taxes imposed by the city of St. Louis upon the ferry-boats used by defendant in conveying freight and passengers across the Mississippi river between the city of St. Louis and the opposite Illinois shore. The court said: ' 'As the boats were laid up on the Illinois shore when not in use, and the pilots and engineers, who ran them, lived there, that locality, under the circumstances, must be taken to be their home port. They did not so abide within the city as to become incorporated with and form a part of its personal property. Hence they were beyond the jurisdiction of the authorities by which the taxes were assessed, and the validity of the taxes cannot be maintained.” (11 Wall. 432.) The state courts have declared the same principles. “These boats have no actual location or place of residence, so to speak, in this state; but they have a location and home in the state of New York, and cannot, I think, in any sense be considered as belonging here as the objects of taxation by us.” (State v. Haight, supra; Mayor of Mobile v. Baldwin, 57 Ala. 70; People v. Niles, supra.) In The State v. Falkinburge, supra, the defendant lived in the county of Cape May, but owned land in Cumberland county. The court held that his cattle were properly assessed in the township of Downe, in Cumberland county, where they “were at the time of the said assessment, and for some time before, actually kept and pastured day and night * * * on his meadow situate and being in the township of Downe.” The court could “perceive no reason therefore, why the owner of cattle, with which grazing lands are stocked, should not be taxed where the owner’s profits on those cattle is made or accrues.” The principles announced in the authorities cited sustain the — 389 — action of the district court in overruling the demurrer; not upon the legal fiction that personal propeity follows the residence of the owner, but upon the fact that the situs of the •cattle, under the averments in the complaint, was at the home ranch in Eureka county, where they actually belonged, for the purpose of taxation. In my opinion the judgment of the district court should be affirmed. It is so ordered.