
    The State ex rel. Dunnica, Appellant, v. The County Court of Howard County.
    Taxability of Municipal Bonds kept out of the State. When municipal bonds belonging to a person who has his domicile in this State, are sent into another State, not for the purpose of avoiding taxation, but for safe-keeping, they cease to be taxable here. This is the general doctrine, and the principle is embodied in the Revenue Act of 1872. Wag. Stat., § 31, 1164.
    
      Appeal from Howard Circuit Court. — Hon. G-. H. Burckhartt, Judge.
    
      Wash Adams for Appellant.
    
    For many purposes, personal property, by a fiction of law, is said to follow the person. But in regard to all proceedings in rem, such as administration and property taxation, which is essentially a proceeding in rem, this fiction must give way to the truth, and the real situs of personal chattels or dioses in possession is where they are actually located, and can be seen and handled notwithstanding their owner is a non-resident. It is well settled, that where the owner resides in one State, and his personal chattels have actual situs in another State, he cannot be taxed for such property at his residence. Burroughs on Taxation, 40. Negotiable municipal bonds are in the nature of personal chattels in possession, They pass from hand to hand by delivery, and if stolen a good title can be passed by the thief to a bona fide purchaser. Wherever their real situs is, that is the State where alone they are liable to taxation and administration. Burroughs on Taxation, 52,53 ; State Tax on Eoreign-held Bonds, 15 Wall. (II. S.) 323; Trow-bridge v. Commissioner, 4 Hun (N. Y.) 595; Attorney General v. Bouwens, 4 M. & W. 171; Varner v. Calhoun, 48 Ala. 178 ; Attorney General v. Hoye, 1 C. M. & R. 530; 8 Bligh 44; British Com. Life Ins. Co. v. Commissioners, 40 N. Y. (1 Keyes) 303 ; People v. Home Ins. Co., 29 Cal. 533; Attorney General v. Limond, 1 Cr. & Jer. 370.
    
      Major $ Shafroth with B. B. Capíes for respondents.
    The situs of personal property, such as the bonds in question, follows the domicile of the owner, and is taxable there. Cooley on Taxation, 269, 270; Hannibfll &¡ St. Jo. B. B. Co. v. State Board, 64 Mo. 294; Parker Mills v. Com. of Taxes, 23 N. Y. 242; People ex rel. P. M. S. Co. v. Com. of Taxes, 64 N. Y. 541; Railroad Co. v. Pennsylvania, 15 Wall. 282; Railroad Co. v. Jackson, 7 Wall. 262. The exceptions to this proposition are in instances where the personal property is invested in loans, or some business enterprise in a State different from the residence of the owner. In such cases the property is taxed at the place of investment, without reference to the residence of the owner or holder of the property. People v. Home Ins. Co., 29 Cal. 533; Catlin v. Hull, 21 Yt. 152; Hoyt v. Commissioners, 23 N. Y. 224; People v. Gardner, 51 Barb. 352; St. Louis v. Wiggins Ferry Co., 40 Mo. 580; Pacific R. R. Co. v. Cass County, 53 Mo. 17; State ex rel. Taylor v. St. Louis Co. Ct., 47 Mo. 594; Curtis v. Ward, 58 Mo. 295. The relator’s bonds should be taxed somewhere. Under the ruling in People ex rel. Bank v. Commr. of Taxes, 59 N. Y. 40, they are clearly not taxable in that State.
   Napton, J.

Upon a certiorari issued at the instance of W. E. Dunnica, requiring certain proceedings by the board of equalization and the county court to be sent up to the circuit court for review, it appeared that the assessor of Howard county notiñed the board of equalization that Dunnica had falsely and fraudulently refused to give a correct list of his personal property. In the investigation of this charge the board found that Dunnica had twenty-two bonds of Howard county, $1,000 each, and prior to such assessment had sent them to New York; that they were taxable in Howard, and, therefore, raised his assessment by $17,600, and by way of penalty for furnishing such false list, trebled this sum, and ordered him to be taxed on $52,800. The county court sanctioned this act of the board.

In the circuit court, on the return of the certiorari, it appeared that Dunnica testified before the board that prior to the passage of the Revenue Act of 1872, he sent twenty-two Howard county bonds, belonging to his wife, of the value of $17,600, to the City of New York, in the State of New York, to the Safe .Deposit Company of New York, being the bonds aforesaid, which company kept a safe for the purpose of safely keeping bonds of this character, payable to bearer; that he paid one dollar per thousand for the safe keeping of said bonds; that the said bonds were in New York on the 1st day of August, 1875 ; that they were not sent out of the State of Missouri to avoid .taxation, but for safety; that he had made n'o effort to conceal the fact that his wife held the bonds ; that he had consulted counsel and was advised by such counsel that said bonds were not taxable or subject to taxation in the State of Missouri; that he did not believe the bonds were taxable, by law, in this State, and that he had taken the oath required by law; that he had sent no property or bonds out of this State to avoid taxation. The board of equalization, without hearing other evidence, proceeded to add to the assessment list of relator the bonds found by them and shown by relator to have, been iu the State of New York on the 1st day of August, 1875, placing said valuation at the sum of $17,600. The circuit court quashed the certiorari, thereby sustaining the action of the county court and the board of equalization.

It will thus be seen that the only question involved is, whether these municipal bonds were taxable in Howard county, the domicile of the owner, though sent to New York for bona fide purposes three years before the assessment. Mr. Justice Field observes in 15 Wall. 328, that “ it is undoubtedly true that the actual situs of personal property, which has a visible and tangible existence, and not the domicile of its owner, will, in many cases, determine the State in which it may be taxed. The same thing is true of public securities consisting of State bonds and bonds of municipal bodies and circulating notes of banking institutions; the former, by general usage, have acquired the character of and are treated as property in the place they are found, though removed from the domicile of the owner, the latter are treated and pass as money wherever they are.” In this State the opinions have been decidedly in conformity to this position, and, indeed, have gone beyond it, extending the doctrine to ordinary bonds and stocks. In State on petition of Taylor v. St. Louis Co. Ct., 47 Mo. 594, the doctrine is applied to bonds, notes and stocks of every description. In St. Louis v. Wiggins Ferry Co., 40 Mo. 580, the same doctrine is sustained. “ The property of either a resident or non-resident is taxable here, if it be found situate within the local jurisdiction, whether it be within the hands of the owner himself or of his agents.” It is conceded that they cannot be assessed in both States, the •situs of the bonds and the domicile of their owner, though an erroneous assessment in one will not exempt them from a correct assessment in the other. Our statute of 1872, adopted since the decision above referred to, seems to us to concede its propriety. The 31st section (2 Wag. Stat., 1164), requires the following oath to be taken by the citizen assessed : “ I do solemnly swear, [or affirm,] that the foregoing list contains a true and correct list of all the personal property' made taxable by the laws of the State of Missouri, including therein money and notes, or bonds in hand or on deposit, owned by me under my charge or management, &c., and that I have not sent or taken any property, bills, bonds or notes, or other securities out of this State to avoid taxation, so help me God.” Does not this oath necessarily imply that where such property has been sent out of this State for bona fide purposes, and not to avoid taxation, it is exempt ? Why require the oath, if it is equally subject to taxation, whether sent out of the State in good faith or not ? Our Legislature seems to have been of opinion that the adoption of the rule declared in Taylor v. St. Louis, 47 Mo. 599, would not operate injuriously on the revenue, believing, doubtless, that the property of capitalists in this State whose domicile was abroad, would greatly exceed that of our own citizens the situs of which was in good faith in other States. Nor were they impressed with the justice of declaring property taxable here which was properly taxable elsewhere. That such is the English rule is apparent from the leading cases of Attorney General v. Hope, 1 C. M. & R. 530, and Attorney General v. Dimond, 1 Cr. & Jer. 370. In conformity, then, to the decisions in this State, and, indeed, to the fair deductions from the revenue law itself, it is obvious that the judgment of the circuit court was erroneous. It is, therefore, reversed.

The other judges concur.

Reversed.  