
    Mayor of Nashville vs. W. J. Thomas, and Same vs. James McLaughlin.
    1. Taxation. Municipal Corporation cannot levy taxes on property or privileges not taxed by the State. Municipal corporations of the State are not authorized to levy taxation upon properties or privileges, other than such as are taxable by the statutory law of the State.
    2. Same. Bank and other stochs, taxed by the State, When, By the statutes and Code, shares of stocks in banks are taxable, and by subsections of 541, all investments by citizens in stocks out of the State, are taxable, and “all other stocks” are taxable. These Acts are construed to embrace the shares of all Banks located in the State, as well as those which have come into being since the enactment of the Code.
    3. Same. Same. Taxable at the place of the owner. The law of Tennessee is, that shares of stock in banks or other corporations, are taxable at the place of the owner, where he is a resident of the State.
    4. Conflict. The law of Tennessee and of Congress in. National Banh stochs not taxed by the laws of Tennessee. The Act of Congress requires that States shall assess for taxation, shares of stock in National Banks, at the place where the bank is located, and not elsewhere. The law of this State, not assessing for taxation, shares of stock in National Banks at the place where the banks are located, is not in conformity with the Act of Congress; and so far as it purports to tax such stocks, is void. The State not having taxed shares of stocks in National Banks located in the State, they are not taxable by the municipal corporation of Nashville.
    EROM DAVIDSON.
    At the September Term, 1867, there was a judgment against the Major and City Council of Nashville; from which they appealed. Judge M. M. Beien, presiding.
    
      JOHN Lellyett and D. W. Peabody, for Nashville.
    Edward H. East and John Spurlock, for Thomas & McLaughlin.
   Henry G. Smith, J.,

delivered the opinion of the Court.

. The municipal government of Nashville, by ordinance of date July 11, 1867, levied upon the shares of the stock of the National Banks of Nashville, a tax of one dollar ($1.60,) and sixty' cents on every one hundred dollars’ worth of the shares of those banks.

Thomas was the owner of one hundred and seventy-five shares of the stock of the Second National Bank of Nashville, of the value of $17,500, and had his residence in the City of Nashville. McLaughlin was the owner of thirty-five shares of the stock of the same bank, and had his residence in the County of Davidson, and outside of the City of Nashville. Thomas and McLaughlin deny the validity of the ordinance, and the liability of their stock to taxation, by virtue of the ordinance. Shares of stock in the National Banks, are taxable by the States. It is authorized by the Act of Congress, of June 3d, 1864, sec. 41, 13 Statutes at Large, 99; and the Supreme Court of the United States has sanctioned the exercise of the power by the States: Van Allen vs. Assessors, 3 Wallace, 578. The Act of Congress prescribes the conditions upon which such taxation may be imposed by the States; and the taxation imposed by the States, must conform to those conditions, otherwise will be void. The municipal corporations of the State are not authorized to levy taxation upon properties or privileges, other than such as are taxable by the statutory law of the State.

The inquiry then, is, whether the revenue laws of the State, embrace the shares of stock in the National Banks within the properties upon which taxation is imposed; and if so, whether the taxation imposed, conforms to the conditions prescribed by the Act of Congress? If the answer. to either branch of the inquiry be negative, the ordinance of the Corporation of Nashville is void. By the Code and statutes, shares of stock in banks are taxable; and taxation is imposed, upon them. The Code, section 541, sub-section 10, enacts, “that all stocks” are taxable. The sub-section 9, of the same section, enacts, that “all investments, by inhabitants of this State, in stocks out of the State,” are taxable; and the 10th sub-section enacts, that “all other stocks” are taxable. These words are comprehensive enough, to embrace the shares of all banks located in the State, as well those which have come into being since the enactment of the Code, as those before; and the shares of National Banks, as of banks which derive their being under the authority of the State.

The stocks of corporate bodies are personal property. It needed no statutory enactment to make them so. They are so, upon the common law definition. The section 1487, of the Code enacts, that the stocks of all private corporations designated by the section, are personal property, and subject to levy and sale under execution; and the section 3034 declares the same of the stocks of railroad and turnpike corporations — corporation stocks are to he deemed personal property. The Revenue Act of the Legislature, of May 24, 1865, ch. 8, sec. 1, enacts, that the rate of taxation levied by virtue of that Act, shall be “ on every one hundred dollars’ worth of taxable property, twenty-five cents.” This includes taxable personalty as well as real estate, and of course bank stocks. The Act embraces many subjects of taxation.. The business of hanking and of other corporate franchises is embraced in' this Act. In respect of these, the tax imposed is considered to be upon the franchise privilege, or business of the corporation. This is quite another thing than taxation upon the shares .of the stock, as taxable properties of the stockholders in the corporations designated: See 6 Wallace, 594; Society for Savings vs. Caite. Personal property is taxable in the county where it is at the time of the assessment. So thOj Code declares, section 553, subsection 4; the language is: “All other personal property than slaves, shall be assessed in the county where it is at the time of the assessment.’’ The place of taxation of personal property, is, consequently, in the county where it is at the time of the assessment.

Shares of stock being personalty, and taxable in the county where the stock is, the question in respect of stocks owned by a person, is, where is the stock? At the place of the owner, or at the place of the Bank ? Undoubtedly, for the purpose of taxation, at the place of the owner. The rule is, that personal property follows the person of the owner. And this rule governs in this State, • subject to modifications in occasional cases, of peculiar character. Though not universal, the rule is general as to personalty of all kinds; and with less exceptions as to choses in action, and as to stocks that are in the nature of choses in action, than as to personalty, of physical form and corporeal character. Nothing here said, is to be understood as implying that shares of stock owned by residents or non-residents,- may not ,be made by legislative enactment, taxable at the .place of the corporation of which it is an incident. The contrary opinion, if ever held or expressed in any decision of this Court in former years, is obsolete. Such opinion belongs to the age before stocks had become as they now are, common and practical realities in trade and finance, having a being definite to the perceptions of persons owning or dealing in them, as if invested with the form of physical actuality. The law of this State is, that stocks in Banks, or other corporations, are taxable at the place of the owner, when he is an inhabitant of this State.

Further, one of the conditions prescribed by the Act of Congress, as essential to the exercise of the power of the States to impose taxation on National Bank stock, is, that the assessment for taxation of such stock shall be “ at the place where the Bank is located, and not elsewhere.”

The law of Tenneseee does not prescribe that the assessment of Bank stocks, State or National, shall be at the place where the Bank is located, and not elsewhere.

The revenue laws of Tennessee, in respect to the taxation of shares of National. Bank stocks, is, therefore, not in conformity with the condition prescribed by the Act of Congress, and is, so far as it purports to tax such stocks, void. And so, the shares of stocks of National Banks are not taxed by the Revenue Law of Tennessee, and are not taxable by the municipal corporation of Nashville. This disposes of both the present cases. Other questions pertinent to the matter in controversy, have been discussed by counsel. No useful purpose is seen demanding the decision of them here. The General Assembly, if thought fit, can easily enact a law which shall subject the National stocks to taxation.

Affirm the judgment in both cases.

George ANDREWS, J.,

delivered the opinion of the Court in the petition of plaintiff for a re-hearing.

In these causes a petition has been filed by the Mayor and City Council for a re-hearing; the petitioners basing their application upon a supposed error in the decision of this Court announced at the present term, in holding, as the Court did in that decision, that property of citizens of this State in the shares of stock of the incorporated Banks of this State must be held to have its situs for the purposes of taxation, at the place of the owner’s domicil, and not at the place where the Bank is located, if such location is at a place other than the domicil. The importance of the question involved renders it proper to re-examine the case in the light of the additional authorities furnished by the counsel for the petitioners: and after such ex-animation, we are fully satisfied of the correctness of our former decision.

Our statute, (Code Sec. 563,) after providing for the assessment of poll tax, real estate, and slaves, declares: “All other personal property shall he assessed in the county where it is at the time of the assessment.” If the Bank is located in one county in this State, and the shareholder resides in another county, at which place are shares of stock so held, located?

The shareholder in an incorporated company, is not a partner of his co-corporators, nor a joint owner with them of- the property and assets of the corporation. His share of the stock is a species of chose in action, the ownership of which entitles him to participate in the net profits earned hy the corporation during its existence, and at its dissolution to a ratable proportion of the property of the corporation that may remain after payment of the debts of the corporation: 3 Wall, 584; 35 N. Y., 430.

It is commonly said that personal property follows the person of the owner; a statement, which taken literally would he a fiction of law, and which is frequently spoken of as such. But properly understood, it expresses only the simple and reasonable doctrine that, for certain purposes of disposal, conveyance, distribution, etc., the property which a person has in chattels, is subject to the regulation of the law of his domi-cil, and not to that of the place where the chattel is corporeally located: Story Confl. Laws, sec. 380.

But this doctrine, convenient and reasonable as it is in regard to the proper subjects of' its application, has no place in this discussion. Our statute declares, 'that personal property shall he assessed “in the county where it is,” and -there is no doubt that the literal terms of the statute must control, and wherever the personal property “is,” whether it be a chose in action, or a tangible chattel, there it must be taxed.

But where is a chose in action? The- right of the owner is not a right in a thing, or a right to a thing, but a mere right of action to recover his debt, or his damages, which, until recovered, have no corporeal existence. And independently of authority, it would seem to require quite as little the aid of fictions of law, to locate this intangible right of action at the place where the owner resides, and inhere the right exists, as at the domicil of the party against whom the right must be enforced.

But, upon authority, it is clear that the situs of a chose in action, must be held to be at the domicil of the owner. It is true that, in seeking his remedy the creditor is compelled to have recourse to the law of the place where his debtor, or the property of the debtor is; and it is also true that the Courts of one State in affording such remedy, will do so with due regard to the rights and interests of its own citizens; but this principle concludes nothing as to whether the situs of the chose in action, is at the one place or at the other. Thus an administrator appointed in one State, cannot maintain a suit in another, not in consequence of any difficulty as to the situs of the debt, but because his authority as administrator is confined to the forum of his appointment.

In Parsons vs. Lyman, 20 N. Y., 103, an executor appointed in Connecticut, where his testator was domiciled, had, by the voluntary payment of a debtor of his testator residing in the State of New York, collected a sum of money and carried it into the State of Connecticut. Afterwards the same executor took out letters of administration in the State of New York, and the question arose, whether he was bound to account in the latter forum for the said money. Denio, J., in that case, says: “By the general rules of law, the debts thus converted into money, had no locality other than that of the creditor’s domicil in Connecticut; and when they had been thus converted, and the avails had been brought into the jurisdiction of the creditor’s domicil, their origin and former history become immaterial, as I conceive, for any purpose, whatever.”

In Holmes vs. Remsen, 4 J. . Ch. R., 460, the contest arose in regard to a debt due to a bankrupt, in foreign jurisdiction; and Kent Chancellor, quotes with approval the decision of Lord- Hardwicke, in 2 Yes., 85, Thorn vs. Watkins, as follows: “That taking a foreign probate, or letters of administration in the country where the property was situated, was but for form, and to enable the party to sue, and that all debts followed the person not of the debtor, but of the creditor to whom due, and that it would be most mischeivous if they were to follow the person of the debtor.”

Where a bond executed by a resident of New York to a resident of Vermont, came to the hands of the administrator in the latter State, it was held to be assets in Ms Rands, even though secured by mortgage in New York. “The bond was in Vermont and was owned there, and was assets to be distributed there, under the proper jurisdiction of their Courts.” * * * * “If a creditor of Hotchkiss had sued out letters of administration in this State, he would have had nothing to administer: Per. Kent, Ch., Doolittle vs. Lewis, 7 J. Ch. R., 49.

An executor or administrator, or administrator of the domicil of the decedent, and having the possession of negotiable paper, due to the deceased in a foreign jurisdiction, may transfer it by indorsement.' Story Confl. Laws, secs. 859, 517.

So of stocks: “Though stock abroad may be as to its transfer, -affected by the local laws, it is not to be treated as of course as partaking of the character of eal estate, and descendible as such.. On the contrary, if it be by the local law, personal estate it may be disposed of by an administrator as such, and the title passes if it be made in the forms prescribed by the foreign law.” Story Confl, Laws, sec. 383, Note 2.

There is but little direct authority upon this question. Cases in regard to the right of personal representatives to bring suit in foreign jurisdictions, throw no light upon it, because that right depends not upon the situs of the cause of action, but upon the local limitation upon, the authority of the representative. The English cases relied upon by petitioner’s counsel, are of no value in this connection, for the reason that they are based upon a rule established in' the Ecclesiastical Courts which is both arbitrary and contradictory. They hold that simple contract debts make bona notabilia where the debtor lived, specialty debts at the place where the bond happened to be at the time of the death of the testator, and judgments, statutes and recognizances, at the places where they are given or acknowledged, the debt following the person of the debtor in only one of these three cases: 1 Wins. on Executors, 263.

The cases cited .by petitioner’s counsel are the following, and we will examine them in detail:

In Ex parte, Horne, 7 B. & C., 632, and 1 Man. & Ry., 529, the testator died at Birmingham, the owner of a share in a canal company having its office at Birmingham, and it was claimed that the executrix ought to take out a prerogative probate, on the ground that as the canal ran through several dioceses,., the testator must be held to have been the owner of property in each diocese. But it was held, that the share was personal property, and that probate was properly made at Birmingham. The decision is placed upon the ground that the testator died at Birmingham, and that the transfer of the share to him was registered upon the company’s books at that place.

The King vs. Undertakers of A. & C. Navigation, 2 Term R., 660, involved the question, where a tax assessed upon tolls levied upon river navigation, should be assessed; at Leeds and Wakefield, where the tolls were collected, or at every municipality through which the navigation extended? It was treated by both Court and counsel, as in the nature of a tax on land, but held that it must be assessed at the places where the tolls were collected. It was not a tax on shares of stock or on choses in action, and there does not appear to have been any incorporated company in the case.

In Rex vs. Cardington, Cowper, 581, and in The King vs. The Company, etc., 8 Term R., 340, the question was the same; and neither of these cases throws any light upon the present inquiry.

In Robinson vs. Bland, cited from 2 Burr., 1079, the only question was, whether a bill of exchange given in France, and payable in England, upon a consideration illegal by the law of England, ‘ was enforcable in the English courts, and it was held, that, as it was payable in England, the law of that country must control.

Milne vs. Moreton, 6 Binn., 353, was a case in which the Judge éxpressed his opinion that property, consisting of debts, may be said to be in the place where the debtor resides; but that question was not directly involved, the contest being one between domestic and foreign creditors.

Johnson vs. Lexington, 14 B. Mon., 648, was a question upon the construction of the charter of the City of Lexington. The Court say: “We think the power of taxation conferred on the city authorities by the charter, extends only to the property and estate within the city, and that the property referred to is visible property, actually situated within the city, and not such estate as has merely a legal or constructive status, and which is regarded for some purposes, as being with its owner wherever he is domiciled. Money and choses in action, constitute estate of this character, and by a legal fiction are considered as having a locality wherever the person resides to whom they belong.”

Finley vs. Philadelphia, 32 Penn., 381, was a ease involving no question but that of the right of the city to tax a , party temporarily residing in the city; for his household furniture used by him at his residence; and it was very properly held that the tax was valid.

In New Albany vs. Meekin, the question was, whether, under a charter conferring the right to tax all real and personal estate within the city, the authorities could tax a part interest in a steamboat which touched only occasionally at New Albany.. The right of taxation was, of course, denied by the Court.

Catlin vs. Hull, 21 Vt., 152, was a case in which a resident of the State of New York, owning notes against persons residing in Vermont, placed them in the hands of an agent in Vermont for collection. The statute of the latter State provided that property held in trust by an executor, administrator, agent or trustee, should be assessed to such executor, etc. It was held that these notes were taxable in the hands of this agent, under this statute.

The case of People vs. Commissioners, 35 New York, 423, is cited as holding that shares in an incorporated bank, are taxable at the locality of the bank. .This case was decided upon the express terms of the statute of New York, and upon no other ground; said statute requiring that such shares should be assessed at the place where the bank is located, and not elsewhere. The case contains no intimation of the general doctrine contended for by petitioner’s counsel.

Hoyt vs. Commissioners, 23 New York, 224, was a case arising from the attempt of the Commissioners of taxes to tax the plaintiff, residing in New York, upon the amount of his capital invested in his business in the City of New Orleans, and upon farm stock and household furniture in the State of New Jersey. The Commissioners claimed, that as personal property follows the person of the owner, all the plaintiff’s personal property must be held to be “within the State” of New York, for the purpose of taxation. 'The Court, per Comstock, Ch. J., held that personal property of the plaintiff actually located and employed as above stated, in Louisiana and New Jersey, was not “within the State” of New York for the purposes of taxation, within the meaning of the statute; the Chief Justice then saying: “This conclusion is intended to embrace only property which is. visible and tangible, so as to be capable of a situs away from the owner or his domicil; and I do not consider the question in reference to personal estate of a different description. It must be within this State, in order to .be subject to taxation, for so is the statute; but that may be true of choses in action and obligations for the payment of money due to a creditor resident here, from a debtor whose domicil is in another State.”

The above are all the cases cited on the part of the petitioners upon this point, except that in 19 Ill., which is not at present accessible to the Court. But .as the statute of that State expressly declares that personal property shall be assessed at the residence of the owner, it is hardly probable that that case would assist us in this investigation. These authorities do not sustain tbe petitioner’s position; and so far as they have any relevancy at all to the question before us, their weight is decidedly the other way.

The argument drawn by counsel for plaintiff in error from a review of the past legislation of this State, does not, in our view, sustain his positions. The omission in the compilation of the Code, of most of the prior statutes which he cites, certainly cannot indicate an intention on the part of the Legislature, to adhere to the theory or principles of the omitted statutes.

Provisions in the statute for the attachment of stocks owned by non-residents, and for securing a lien on such property by the registry of the judgment “in the county where the property is,” indicate simply that in the case of a non-resident owner, the convenient rule is, to regard the stock, for the purposes of notice, as located where the corporation' is.

By section 541 of the Code, all investments by inhabitants of this State, in stocks out, of the - State, and all capital lent or deposited out of the State, are taxr able. The Code requires the assessment for taxation, to be in the county where the property is, and if the locality of State stocks and of the shares of moneyed -corporations is necessarily in the State where they are issued, or where the Corporation exists, such foreign stocks could not be assessed at all in this State.

But it is further claimed, that, even if our conclusions above drawn are sound, still, the tax imposed in these cases is not illegal, because the law of the United States prohibits only a discrimination in • the rate and place of taxation, hut does not assume to control or affect the manner of its assessment.

The objection to this assessment is, that it conflicts with the provisions of our own constitution requiring taxation to be equal and uniform. The owners of shares in National banks may reside at the place where the bank is located, or at other places; and if such shares were to be taxed under our present laws, it could only be in those cases in which the residence of the owner is at the locality of the bank. For, if the residence of the owner is • elsewhere, he could not be assessed in respect of such shares at his residence, because the law of the United States forbids it; and he could not be assessed at the place where the bank is located, because the law of this State does not permit it.

It is obvious, therefore, that neither equality nor uniformity could be obtained in attempting to carry out such a system of taxation.  