
    Augustus Carrier v. Lewis S. Gordon, Treasurer.
    Tangible personal property situate in the State, and liable to taxation, does-not become exempt from such liability by the fact that it has been purchased from the owner by a non-resident, with the intention of transporting it beyond the State, and is merely awaiting the necessary opening of navigation-for its removal, but has not in fact been started on its transit.
    Error to the district court of Paulding county.
    The original action was brought by Carrier against Gordon, wTho was treasurer of Paulding county, to enjoin the-collection of a tax assessed upon a quantity of ship timber owned by Carrier. He states in his petition that he was a non-resident of the State at the time the property was returned by the assessor, and for a year preceding; that “he had purchased ” the property “ in said county during the winter and spring previous to such return, intending to remove the same from the State upon the opening of navigation; ” and that the property, “at the time of such return, remained in said township temporarily only, until it could be removed by the usual and convenient means of transportation.”
    To this petition the defendant demurred, and the demurrer was sustained by the court, and judgment rendered for the defendant.
    On petition in error this judgment was affirmed by the district court; and the plaintiff seeks by his petition in error here to reverse the judgment of affirmance.
    
      M. R. & B. Waite and Henry Newbegin for plaintiff in error:
    The plaintiff in error is not legally liable for the payment of the tax assessed against him on the ship timber.
    As a general rule, personal property, has no situs, but follows the person of the owner. The law which governs it is the law of the owner’s domicil. The legal presumption is, therefore, that all personal property is considered as being located- (situated) at the place of the owner’s domicil, and is under the law of that domicil. This presumption continues until a contrary intention of the owner appears.
    Personal property “ in this State,” (S. & C. 1438, sec. 1,) to be within the operation of the tax law, must belong to a resident owner, or, if belonging to a non-resident owner, must be such as the owner intends shall remain in the State, or, at least, such as he has no present intention to remove. There must be something more than actual presence. There must be the intention to have it remain.
    In this case, prima facie, personal property belongs at the residence or domicil of the owner; but this presumption may be overcome. Unless it is shown to belong within the State, it is not taxable. If the owner resides within the State, the presumption is it belongs here. If he resides without the State, the presumption is it belongs without. To make it the subject of taxation this presumption must be overcome.
    •Any other rule would make property in transit, property in store awaiting shipment, property on the person of the owner who is here for temporary purposes only, subject to taxation within this State. See The People ex rel Hoyt v. Com’rs of Taxes, 23 N. Y. 224, 240; Johnson v. The City of Lexington, 14 B. Monroe, 648; Finley v. The City of Philadelphia, 32 Penn. 381; The City of Albany v. Meekin, 3 Ind. 481; The City of Evansville v. Hall, 14 Ind. 27; De Peauw v. The City of New Albany, 22 Ind. 204; Rieman v. Shepard, Treasurer, 27 Ind. 288, 291. All the cases recognize the distinction we contend for, and that it is to be determined by the facts in each particular case, whether the property to be acted upon belongs at the place where the owner has his residence or domicil, or has a residence or domicil, so to speak, of its own.
    
      Mr. Newbegin, of counsel for plaintiff in error, in a supplemental brief, submitted, that had the plaintiff been a resident of another county in this State, it would not be claimed that his personal property located temporarily in Paulding county, could be assessed there for taxation; but, in that case, the situs of the property, for purposes of taxation, would be at the residence of the owner. (Bailey v. Buell, 59 Barb. —; Mygatt v. Washburn, 1 Smith, (15 N. Y.) 316 ; People v. Supervisors, 1 Kernan, (11 N. Y.) 563; and that he could see no reason why the same rule does not apply betweer States, as to the personal property of their citizens.
    
      J. B. Osborn for defendant in error :
    It is the policy of our tax laws to lay the burdens of taxation equally on all property which is in the State, for any purposes whatever, except mere transit through the boundaries of the State.
    It does not change the character of this taxation, that the owner does or does not reside out of the State of Ohio ; or whether he intends selling the property in Ohio or elsewhere.
    Whatever may be the situs of personal property as to possession and ownership, for purposes of taxation, its situs is the township and county where it is found. Hoyt v. Com
      
      missioners of Taxes, 23 N. Y. 224 ; Finley v. The City of Philadelphia, 32 Penn. 381; Catlin v. Hull, 21 Verm. 152;. Powell v. The City of Madison, 21 Ind. 335 ; The City of Madison v. Fitch, 18 Ind. 33; Jackson v. The State, 15 Ohio, 652.
    
      Osborn & Swayne, and Bissell & Qorrill, for defendant in error, submitted a supplemental brief:
    There can be no doubt as to the power of the legislature-to levy a tax upon the property of the citizens and residents-of other States found within our jurisdiction. 'The case becomes then merely one of statutory construction.
    The statute provides that “ all property whether real or personal in this State * * * shall be subject to taxation.” S. & C. 1438, sec. 1. And see S. & C. 1439, sec. 2; 1460, sec. 59 ; 1446, sec. 17 ; 1447, secs. 18, 19 ; 1451, sec. 33 1452, sec. 34 ; S. & C. 761, sec. 20 ; 756, sec. 11; 758, sec-13 ; 59 O. L. 14.
    The petition does not claim that the property in question was in transit.
    It was a peculiarly proper subject for taxation. No doubt-the timber had been felled and hewed during the previous-winter.
    Excepting the stocks in trade of merchants, manufacturers and bankers, and perhaps goods in transit between other States, all personalty within our boundaries is taxed as it exists on the day preceding the second Monday of April, in each year, and in the name of him who on that day is its-owner. The length of time during which he has owned it, the purposes to which he intends it shall be devoted, or the place of his residence, are matters with which the assessor and treasurer have no concern. This is probably as fair a method of taxation as could be devised. It certainly is the clear expression of the legislative will, in a matter within their constitutional jurisdiction.
   Welch, C. J.

We think the courts below were right in-holding this property liable to the tax. The statute governing the case (S. & C. 1438, sec. 1, and 1439, sec. 2) makes all tangible personal property in the State subject to .taxation, irrespective of the residence or non-residence of the owner in the State. It is true that in order to constitute it “ property in the State,” within the meaning of the-law, it must have a situs in the State. If it is at the time-the tax attaches in transitu, either through the State, or from a point in the State to a point outside the State, it is-not to be regarded as property in the State, within the meaning of the statute, but as property belonging to the-place of its destination. But such was not the situation of this property at the time it was returned for taxation.. There is nothing in the plaintiff's petition to show that the-timber had in any sense started on its journey, or had been removed from the place or places where it had been purchased. We are bound to presume that the property had a situs, and was liable to be taxed in the hands of the parties from whom the plaintiff purchased. To say that the simple-purchase of the property, with an intention to remove it, would relieve it from liability to taxation, would be to make-its liability depend upon the mere intention of the owner, and subject to change as often as the owner changed his-intention. There would be no safety or certainty in such a rule. The safer and better rule is the one indicated, to consider property actually in transit as belonging to the place of its destination, and property not in transit as property in the place of its situs, without regard to the intention; of the owner, or his residence in or out of the State.

Judgment affirmed.

White, Day, McIlvaine and West, JJ., concurred.  