
    Rieman and Another v. Shepard, Treasurer of Vigo County, and Another.
    Taxes.—Situs of Personal Property.—Where a person engaged in the provision trade in another State, where he has his domicil, purchases, slaughters and packs hogs in this State, for shipment to the place of his domicil, to be sold in the usual course of his business there, such property is subject to taxation in this State.
    Same.—Duty of Aoent to List Property.—Under section 10 of the act for the assessment of taxes, (1 G. S H. 70,) it is the duty of an agent to list for taxation the property of his principal in his custody, and in the event of his failure to do so, tho property is properly assessed to him.
    Affidavit to Release Property.—An affidavit filed in support of an application to a county auditor to release property from taxation, under section 92 of the act for the assessment of taxes, (1 G. & II. 97,) upon tho ground that a tax had already been paid in another State, stated that no specific taxation was- made upon the property in the State where tho tax was alleged to have been paid, but that the assessment and taxation there “was intended and understood to cover and include” the whole business of tho applicant, and that the taxes had been paid.
    
      Hold, that the affidavit did not sufficiently show that a tax had been paid upon the property in another State.
    Assessment by County Treasurer.—Under the act of March 3, 1859, (1 G. & H. 74,) it is the duty of the county treasurer to assess for taxation property which has been omitted hy the assessors; hut where an assessment made hy the county auditor was acted upon and adopted hy the treasurer, it was held sufficient.
    APPEAL from the Vigo Common Pleas.
   Ray, C. J.

The appellants filed their complaint in the Vigo Common Pleas, alleging, substantially, that they were, and had been for several years, provision dealers in and residents of Baltimore, Maryland, and doing their entire business there, except so far as afterwards stated; that their capital and personal property, including stock in trade, merchandise, provisions, produce and money were assessed for taxation in the said city of Baltimore, and State of Maryland, for the years 1864 and 1865, under the generic name of personal property, and that such taxes had been paid; that as such provision dealers, they have a packing house in Terre TIaute, Indiana, and are in the habit, during December, January and February of each year, of purchasing, slaughtering and packing hogs, at the said packing house;, for shipment from Indiana, and sale in their business at Baltimore; that in December, 1864, they bought and slaughtered at Terre Haute, for their said trade in Baltimore; &57,380 worth of hogs, of which $37,480 worth were bought in and brought from Illinois; that said money was procured from their said house in Baltimore, and was taxed as aforesaid; that during December, January and February of 1864 and 1865, they packed their said hogs at Terre Haute, and shipped them from Indiana and sold them in 1865, in the prosecution of their said business, in Baltimore; that the value of said hogs did not exceed $57,380; that at the same time, at Terre Haute, they bought and packed for Henry Fieman & Son, resident provision dealers of Baltimoi-e, with money received from them, $25,000 worth of hogs, for their said business in Baltimore, and shipped the hogs so packed to said Henry Fieman & Son, at Baltimore, where they were sold in 1865, in the prosecution of their said business; that the capital and personal property of Henry Fieman § Son, including their stock in trade, merchandise, provisions, produce and money,. were assessed for taxation in Baltimore, for 1864 and 1865, under the generic name of personal property, and that the taxes were fully paid; that the value of said hogs did not exceed $25,000; that the above named was all the personal property either owned or held by plaintiffs in the State of Indiana in 1865; that no specific taxation was made upon the said hogs in the State of Maryland, but the said assessment and taxation were intended and understood to cover and include the entire business in Baltimore of plaintiffs and of Henry Bieman £ Son, and the produce and provisions there held, owned or sold by them in 1865; that no part of said hogs were sold or intended to be sold in Indiana, except the offal, amounting to $800, and some small sales to a few friends, amounting to $500; that at the June term, 1865, of the board of equalization for said county of Vigo, the township assessor reported that there was a large amount of pork on hand at the packing house of plaintiffs on the first of January, 1865, whereupon the board verbally directed the said auditor to ascertain the facts, and to make the assessment, and the auditor afterwards, having ascertained the facts, did, in June, 1865, without the knowledge of or notice to plaintiffs, assess them with personal property valued at $84,485, and extended thereon, on the tax duplicate of Vigo county, the state and county taxes at $1,453 14, plaintiffs being then out of the State; that said auditor intended to assess thereby the said hogs so packed, shipped and sold at Baltimore. Plaintiffs insist that the said taxation is largely in excess of all personal property owned by them in Indiana in 1865; that the property was not taxable in Indiana, and that the assessment and taxation were made without authority of law; that they filed, in April, 1866, with the auditor, an affidavit stating the above facts, and asked him to release said property from taxation, and offered to furnish any other evidence he might require that they had so paid a tax on the same for 1865 in Maryland, but that he asked for no other .evidence, and refused to release the taxes; that the tax duplicate was delivered to said treasurer, who levied said taxes on the property of plaintiffs, and is about to enforce their collection; wherefore plaintiffs ask for an injunction.

The affidavit of one of the plaintiffs was also filed with • the complaint, setting out the same facts as in the affidavit filed with the said auditor; also the copy of the assessment from the tax duplicate.

The defendants appeared and filed their demurrer to the complaint, and assigned as cause of demurrer that the complaint did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, to which decision plaintiffs excepted; and the plaintiffs failing to amend, final judgment was rendered for the defendants, and plaintiffs appeal to this court.

The first question presented by this record is, whether the property in question was properly taxable in the State of Indiana. "We regard this question as fully settled in the case of Powell et al. v. The City of Madison, 21 Ind. 335. In that case, this language was used by Judge Worden: '“It may be true that for the purposes of taxation the situs of such property as debts, corporation stocks and such intangibilities may be regarded as the domicil of the owner. The City of Evansville v. Hall, 14 Ind. 27. But it does not follow that such' is the rule in reference to property that has tangible, corporeal qualities, and must have an actual situs, and we think both on principle and authority it may be taxed wherever found, without reference to the domicil of the owner. This subject underwent a very full examination in the case of Hoyt v. The Commissioners of Taxes, 23 N. Y. 244, and the decision there fully sustains the views above expressed.” In the case under consideration, the property was not in transit through the county of Vigo. It was brought there, not for immediate reshipment, but that money, labor and skill might be there expended upon it, to enhance its value and change its condition as a merchantable commodity. While there, and undergoing this change^ in its condition, it, as property, had a situs within the State and was under the protection of its laws. Judge Story, referring to the situs of goods and chattels, observes: “ The general doctrine is not controverted, that although movables are} for many purposes, to be deemed to have no situs, except that of the domicil of the owner, yet this being but a legal fiction, it yields whenever it is necessary, for the purpose of justice, that the actual situs of the thing should be examined.” He adds: “A nation, within whose territory any personal property is actually situated, has an entire dominion over it while therein, in point of sovereignty and jurisdiction, as it has over immovable property situated there.” . Story on Conflict of Laws, § 550.

Again, it is insisted that the statute does not authorize the taxing of the personal property of Henry Rieman & Son to the appellants. Section 10 of the act for the assessment of taxes, (1 G. & H. 70,) provides that “the property of every' ward shall be listed by his guardian,” &c., “ of every company, firm, body politic or corporate, by the principal accounting officer, partner or agent thereof.” The averments of the complaint show that the appellants were the agents of Rieman & Son, and that it was their duty to list the property for taxation. The assessment was therefore properly made against the appellants. Powell v. The City of Madison, supra.

It is insisted, however, that it was the duty of the auditor to release the property from taxation upon the affidavit filed, under the ninety-second section of the act for the assessment of taxes. 1 G. & H. 97. That section .provides that “if any person who has been assessed with personal property out of the State, shall satisfy the auditor of the county where such assessment is made, by his own affidavit, and such other evidence as such auditor may require, that he has paid a tax on such property for the current year, in any other State in the Union, such auditor shall release such property from taxation.” It will be observed that the law requires, first, the affidavit of the person assessed, “that he has paid a tax on such property for the current year;” second, such other evidence as the. auditor may require. In our opinion the first requirement of the statute was not complied with. The affidavit filed with the auditor states “that no specific taxation was made upon the said hogs in the State of Maryland, but the said assessment and taxation in the State of Maryland were intended and understood to cover and include the entirety of their said business in the said city of Baltimore and State of Maryland.” The affidavit also states that the taxes assessed in Maryland for the years 1864 and 1865 were paid. It was within the knowledge of the appellants whether they had paid a tax upon the property in question in Maryland, or not. The property was subject to taxation in Vigo county, and it would be a mere act of comity towards a sister State not to enforce the tax in Indiana, if it had been already collected in Mciryland. The affidavit, expressed in language so equivocal, is entitled to little consideration in this court.

B. Smith, C. Y. Batterson and J. M. Allen, for appellants.

J. G. Crane and W. Maeh, for appellees.

It- is objected that the assessment of this property was made by the auditor, instead of being made by the treasurer of the county, as required by the “ act to authorize county treasurers to assess property which may be omitted by assessors, and to legalize assessments heretofore made by treasurers,” approved March 3,1859. 1 G.& H.74. That act provides that such assessment by the treasurer need not be made upon actual view, and we think the averments in the complaint show an adoption by the treasurer of the act of the county auditor in making the assessment. The demurrer was properly sustained to the complaint.

The judgment is affirmed, with costs.  