Citations for Plaintiff in Error.

SHOTWELL v. MOORE.

ERROR TO THE SUPREME COURT OF THE STATE OF OHIO.

No. 1030. Argued January 30, 1889.- Decided March 5, 1889.

A State may make the ownership of property subject to taxation, relate to any day or days or period of the year which it may think proper; and the selection of a particular day on which returns of their property for the purpose of assessment are to be made by taxpayers does not preclude the making of assessments as of other periods of the year. Section 2737 of the Revised Statutes of Ohio, which requires the taxpayer to return to the assessor, as of the day preceding the second Monday in April in each year, among other things a statement of "the monthly average, amount or value, for the time he held or controlled the same, within the preceding year, of all moneys, credits, or other effects, within that time invested in or converted into, bonds or other securities of the United States or of this State, not taxed, to the extent he may hold or control such bonds or securities on said day preceding the second Monday of April, and any indebtedness created in the purchase of such bonds or securities shall not be deducted from the credits under the fourteenth item of this section" does not tax the citizen for the greenbacks or other United States securities which he may have held at any time during the year, but taxes him upon the money, credits, or other capital which he has had and used, according to the average monthly amount so held, and is not in conflict with § 3701 of the Revised Statutes of the United States exempting the obligations of the United States from taxation under State, municipal or local authority.

THIS was an action brought by the defendant in error as treasurer of Harrison County, Ohio, against the plaintiff in error in the Court of Common Pleas for that county to recover the amount of a tax assessed against him. Judgment in the Common Pleas for the defendant, which was reversed by the Circuit Court, and the judgment of reversal was affirmed by the Supreme Court of the State. This writ of error was sued out to the latter judgment. The case is stated in the opinion.

Mr. Richard A. Harrison and Mr. T. D. Lincoln for plaintiff in error cited: Otis v. Boston, 12 Cush. 44; Ogden v. Walker, 59 Indiana, 460; Montgomery County v. Elston, 32 Indiana, 27; Stillwell v. Corwin, 55 Indiana, 433; McCulloch

Opinion of the Court.

v. Maryland, 4 Wheat. 316; Bank of Commerce v. New York, 2 Black, 620; Bank Tax Case, 2 Wall. 200; Banks v. New York, 7 Wall. 16; Weston v. Charleston, 2 Pet. 449; Bank v. Supervisors, 7 Wall. 26; People v. Ryan, 88 N. Y. 142; Savary v. Georgetown, 12 Met. (Mass.) 178; Greene v. Mumford, 5 R. I. 472; S. C. 73 Am. Dec. 79; Kellogg v. Ely, 15 Ohio St. 64; Exchange Bank of Columbus v. Hines, 3 Chio St. 1; Latimer v. Morgan, 6 Ohio St. 279; Champaign County Bank v. Smith, 7 Ohio St. 42; Payne v. Watterson, 37 Ohio St. 121.

Mr. David K. Watson, Attorney General of Ohio, and Mr. D. A. Hollingsworth (with whom was Mr. John M. Garven on the brief) for defendant in error cited Bank of Commerce v. New York, 2 Black, 620; Banks v. New York, 7 Wall. 16; Bank v. Supervisors, 7 Wall. 28; Mitchell v. Leavenworth County, 91 U. S. 206; Holly Springs Co. v. Marshall County, 52 Mississippi, 281; Jones v. Seward County, 10 Nebraska, 154; Dixon County v. Halstead, 23 Nebraska, 697; Exchange Bank v. Hines, 3 Ohio St. 1; People v. Ryan, 88 N. Y. 142; Witherspoon v. Duncan, 4 Wall. 210; State Railroad Tax Cases, 92 U. S. 575; Games v. Dunn, 14 Pet. 322; Pelton v. National Bank, 101 U. S. 143; Cummings v. National Bank, 101 U. S. 153; National Bank v. Kimball, 103 U. S. 732; Corwall v. Todd, 38 Connecticut, 443; Olmsted v. Barber, 31 Minnesota, 256; Poppleton v. Yamhill County, 8 Oregon, 337.

MR. JUSTICE MILLER delivered the opinion of the court.

This writ of error to the Supreme Court of the State of Ohio brings up for review a judgment of that court concerning the taxation by the state authorities imposed upon the plaintiff in error, Stewart B. Shotwell, as the owner of a certain amount of United States legal-tender Treasury notes, commonly called "greenbacks" The case was tried in the Court of Common Pleas of Harrison County, Ohio, by the court, without a jury, by consent of parties; and that court found the following concasions of fact and law, under the provision of the state statute, upon which all the subsequent proceedings have been based:

Opinion of the Court.

"The parties to this cause having waived a jury, the same came on for trial to the court, and the parties with a view of excepting to the decision of the court upon the questions of the law involved in the trial, having requested the court to state in writing the conclusions of fact found separately from the conclusions of law, and the testimony having been heard, the court finds as conclusions of fact as 1ollows:

"That the defendant is and for many years has been a resident of Harrison County, Ohio; that on the Saturday preceding the second Monday of April, in the years 1881, '82, '83, '84, and '85, the defendant had on deposit in bank, at the town of Cadiz, in said county, to his credit as a general depositor, the following sums: In 1881, $30,900; in '82, $26,900; in '83, $29,550; in '84, $18,560; in '85, $4700; that on said Saturday in each of said years he checked out the said balance so standing to his credit and at his request the same was paid to him in United States securities commonly called 'greenbacks;' that on each occasion after counting the money so paid to him he enclosed the same in a package, wrote his name thereon, and returned the same to the officer of the bank, requesting him to place the same in the bank's safe for him, which was done. On no occasion did the defendant carry the money out of the bank building; and in the early part of the next week in each of said years he returned to the bank and demanded his package, which was given him, and he opened the same and delivered it to an officer of the ban. asking that the amount should be placed to his credit as a general depositor, which was done; that on each occasion the defendant drew out the balance due him with intent to obtain non-taxable securities, and thereby evade taxation on such balance; but that on each occasion during the time which intervened between the withdrawal and the subsequent deposit as a general depositor he was bona fide the absolute owner of the money so withdrawn, and the same was subject to his disposal; that he did not in either of said years list for taxation any part of the money so paid to him nor did he list the monthly average amount or value, for the time he held or controlled the same within the preceding year, of any moneys, credits, or other

Opinion of the Court.

effects within that time invested in or converted into the said securities so by him drawn out of bank, and that said monthly average amount so invested by the defendant in such securities within the years, respectively, preceding the drawing out of said moneys was the amount so drawn out at the end of the year; that the auditor of said county placed said several sums upon the duplicate of said county for the year 1885, except for the year '85 he erroneously placed $4949, with fifty per cent added thereto, making $7420, whereas the data before him and by which he should have been controlled authorized only $4700, which with fifty per cent added, would make $7050; and the court further finds that the amount of taxes chargeable upon the aggregate of said several sums, if the same are subject to taxation, is $2317.05, and that said duplicate was delivered to the treasurer of said county for collection.

"And the court being of opinion that, upon the facts so found, the law of this case is with the defendant, it is thereupon considered that the defendant recover of the plaintiff his costs herein expended, taxed at $20.60; to which ruling of the court as to the law of the case and to the judgment so rendered the plaintiff excepts."

The case was taken by appeal to the Circuit Court of the State, where the decision of the Court of Common Pleas was reversed, and judgment rendered for the amount of the tax sued for against Shotwell. This was carried to the Supreme Court of the State, in which the decision of the Circuit Court was affirmed. To review that judgment this writ of error is prosecuted.

The error assigned is that the tax levied and enforced by this judgment was upon notes of the United States, which is forbidden by the Revised Statutes of the United States in the following language:

"SEC. 3701. All stocks, bonds, Treasury notes and other obligations of the United States shall be exempt from taxation by or under state or municipal or local authority."

And that the Supreme Court of Ohio erred in holding that 2737 of the Revised Statutes of the State, passed June 20,

VOL. CXXIX-38

Opinion of the Court.

1879, to take effect January 1, 1880, is not in violation of, nor repugnant to, the section above quoted.'

It is not controverted by counsel for defendant in error that under the United States law the greenbacks were not subject to taxation, or that if the Ohio statute, when properly construed, authorizes such taxation it is to that extent invalid. But

1 Sections 2736 and 2737 are as follows:

"SEC. 2736. Each person required to list property shall, annually, upon receiving a blank for that purpose from the assessor, or, within ten days thereafter, make out and deliver to the assessor, a statement, verified by his oath, of all the personal property, moneys, credits, investments in bonds, stocks, joint stock companies, annuities, or otherwise, in his possession, or under his control, on the day preceding the second Monday-of April of that year, which he is required to list for taxation, either as owner or holder thereof, or as parent, husband, guardian, trustee, executor, administrator, receiver, accounting officer, partner, agent, factor, or otherwise.

"SEC. 2737. Such statement shall truly and distinctly set forth, first, the number of horses, and the value thereof; second, the number of neat cattle, and the value thereof; third, the number of mules and asses, and the value thereof; fourth, the number of sheep, and the value thereof; fifth, the number of hogs, and the value thereof; sixth, the number of pleasure carriages (of whatever kind), and the value thereof; seventh, the total value of all articles of personal property, 'not included in the preceding or succeeding classes; eighth, the number of watches, and the value thereof; ninth, the number of piano-fortes and organs, and the value thereof; tenth, the average value of the goods and merchandise, which such person is required to list as a merchant; eleventh, the value of the property which such person is required to list as a banker, broker, or stock-jobber; twelfth, the average value of the materials and manufactured articles which such person is required to list as a manufacturer; thirteenth, moneys on hand or on deposit subject to order; fourteenth, the amount of credits as hereinbefore defined; fifteenth, the amount of all moneys invested in bonds, stocks, joint stock companies, annuities, or otherwise; sixteenth, the monthly average amount or value, for the time he held or controlled the same, within the preceding year, of all moneys, credits, or other effects, within that time invested in, or converted into, bonds or other securities of the United States or of this State, not taxed, to the extent he may hold or control such bonds or securities on said day preceding the second Monday of April; and any indebtedness created in the purchase of such bonds or securities shall not be deducted from the credits under the fourteenth item of this section; but the person making such statement may exhibit to the assessor the property covered by the first nine items of this section, and allow the assessor to affix the value thereof, and in such case the oath of the person making the statement shall be in that regard only that he has fully exhibited the property covered by said nine items..