
    The Pomeroy Salt Company et al. v. Alban Davis, Treasurer of Meigs county.
    1. An unincorporated company, though not strictly a co-partnership, owning personal property in this State, is subject to taxation thereon, in the name of such company, under the provisions of th'e 4th section of the tax law of 1859, as amended on the 8th day of April, 1865, (S. & S. 756) which requires the personal property “of every company, firm, body politic or corporate,” to be listed for taxation, “ by the president or principal accounting officer, partner or agent thereof.”
    2. An incorporated company, organized under the laws of this State, or of a sister State, may become a member of such unincorporated company, if the sole business of the latter is auxiliary to the business for which the former was organized.
    3. In such case, the incorporated company, if located within this State, is relieved from the duty imposed by the 16th section of said act of 1859, (S. & C. 1446) of listing its interest in such unincorporated company, by virtue of the 9th clause of the 3d section, which provides that “no person shall be required to include in his statement, as a part of the personal property, moneys, credits, investments in bonds, stock, joint stock companies, or otherwise, which he is required to list, any share or portion of the capital stock or property of any company or corporation which is required to list or return its capital stock or property for taxation in this State.”
    4. The personal property of such unincorporated company should be listed in the tax district where its principal business office is located, and in which its managing agent resides.
    5. Boats and barges are the subject of joint ownership, and may become the property of joint companies, whether incorporated or unincorporated. And when so owned, and used in whole or in part in navigable waters within or bounding upon this State, should be taxed in the district where the company's principal office is located, and in which its managing agent resides.
    Error to the district court of Meigs county.
    The original action was brought by plaintiffs in error against the defendant in error, in the court of common pleas of Meigs county, to restrain the collection of taxes, and was taken by appeal from a decree in favor of the plaintiffs to the district court.
    Upon the hearing in the district court a decree was rendered in favor of the defendant. A motion for a new trial was made by the plaintiffs and was overruled, and a bill of exceptions taken containing all the testimony.
    
      The principal error now relied upon is, that the district court erred in dismissing the plaintiffs’ petition and rendering judgment in favor of the defendant.
    Some of the plaintiffs are incorporated companies, orga. nized under, the laws of Ohio, doing business in the State of Ohio; others are incorporated companies organized under the laws of the State of West Virginia, doing business in the State of West Virginia. Valentine B. Horton, one of the plaintiffs, is a citizen of the State of Ohio. They are all engaged in the business of manufacturing and selling salt.
    In their petition the plaintiffs set forth in substance the following facts:
    The several plaintiffs, in order to faciltate the selling and shipping of salt manufactured by them respectively, appointed certain agents for that purpose, but subject to the direction and control of the plaintiffs. For the purpose of keeping proper accounts, and regulating expenditures, the agency was called the Ohio River Salt Company. After this agency was created, several of the plaintiffs associated themselves with the companies who originized the agency, and for like purposes, and with them beuame principals of the agency, and owners of the personal property mentioned in the petition.
    In the prosecution of business by means of this agency, it became necessary for the plaintiffs to own a large number of flat boats, barges, and other personal property. This property was owned in common by the plaintiffs, but in different proportions.
    All the plaintiffs, except the Excelsior Salt Company, located in the county of Meigs, were taxed upon their respective shares in the joint property. Such of the plaintiffs as are companies located in Mason county, West Virginia, were there taxed for the years 1865 and 1866, and not subjected to tax in Meigs county, Ohio. The Excelsior Salt Company listed its interest in the joint property for taxation in the year 1866. For the year 1865, through the advice of the auditor of Meigs county, the Excelsior company failed to list its interest in the joint property for taxation, but should have so listed $3,640.
    
      At the times of listing personal property for taxation in Meigs county, for the year 1865, and 1866, the assessor returned, in the name of the Ohio River Salt Company for taxation, a valuation of $26,000 for the year 1865 ; and a valuation of $27,000 for the year 1866, to which a penalty of $13,800 was added. These returns of the assessor are averred to have been wrongful and unauthorized by law.
    It is also averred that the defendant, the county treasurer, well knowing that the Ohio River Salt Company was none other than the agency described, on the 17th of January, 1867, distrained, for the payment of the taxes and penalties assessed against it, certain property of the plaintiffs, and had advertised and intended to sell the same, in the name of the Ohio River Salt Company; and that if he should do so, the plaintiffs would be taxed double on the same property. Wherefore an injunction is prayed.
    The defendant answered, in substance :
    1. That the Ohio River Salt Company is not a mere agency of the plaintiffs, but is a joint stock company, distinct, in name and character, from the several plaintiffs, and does business, in its own name, shipping and selling salt; and is composed of several individuals associated together, having a president, directors, and managing agent, and constituted for the object of shipping and selling salt, under the name and style of such company ; and has so held and still holds itself out to the business community and the world. That, in order to carry out the object of the company, it necessarily had, at the time the tax mentioned in the petition was assessed, and still has, flat-boats, barges and other personal property, controlled by the agents of the company ; and that, at the time the tax was assessed in Meigs county, in the years 1865 and 1866, the property assessed was subject to be listed, in that county, as the property of the company.
    2. That the property thus taxed, and the property dis-trained to pay the tax, belonged to the Ohio River Salt Company, separate and distinct from the property of the plaintiffs or either of them.
    3. That if the several plaintiffs were interested in the company at the time of the levy of the tax and the distraint of the property, it was subject to the control of the company.
    
      4. That the taxes for the years 1865 and 1866 levied against the company, were legally assessed ; and that neither the taxes nor penalty had been paid, but were due and payable at the time of the distraint.
    5. That if the Ohio River Salt Company was the mere agent of the plaintiffs, still it should have listed the property in its possession and under its control, for the years 1865 and 1866.
    6. That neither of the plaintiffs had listed and paid the tax on their individual shares in the company.
    7. That the plaintiffs were notified by the auditor of Meigs county not to list their stock in the Ohio River Salt Company for taxation, and that he had received instructions from the auditor of state to have the property of the com•pany listed in its name, and that the property of the company should be so listed and taxed.
    On the trial the plaintiffs, to maintain the issue on their part, offered the following evidence, and it was all the evidence offered :
    
      The Record of the Ohio River Salt Company.
    
    “At a meeting of the delegates of the salt companies on the Ohio river, held at the Ohio River Salt Company’s office, Coalport, Ohio, July 31, 1857, the following salt companies were represented : Dabney Salt Co., by Y. B. Horton; Sugar Run Salt Co., by C. Grant; Pomeroy Salt Co., by C. R. Pomeroy; Hartford City Salt Co., by W. H. Healey; West Columbia Salt Co., by S. Hamilton; Coalridge Salt Co., by J. H. Guthrie; Coalport Salt Co., by Y. B. Horton and R. R. Hudson.
    “ The object of the meeting was made known by Mr. Horton, who read the articles of association, as follows r
    1 ‘ Eor the purpose of insuring system and unity of action in the disposition and sale of salt, the undersigned, manufacturers of salt, agreed to form themselves into an association, and have adopted the following articles:
    
      “Article 1st. — The association-shall be called the Ohio River Salt Company.
    “Art. 2d. — The business of the company shall be the shipping, transportation and sale of the salt made by the members of the association, and the company may, if deemed for its interest, buy such salt from others than members of the association.
    “ Art. 3d. — Salt manufacturers' may become members of this association by subscribing these articles, binding themselves to deliver all the salt made by them, and to conform to all the rules made in pursuance of the provisions of these articles, as to the delivery of salt, quality, cooperage and general conduct of the business.
    “ Art. 4th. — The board of directors shall be chosen annually, in the following manner, to wit: Each salt company being a member of this association shall elect a dele gate to represent its interest and to act as a member of the board of directors. The persons so chosen shall constitute the board of directors of this association.
    “Art. 5th. — The board of directors shall elect one of their members as president, and shall appoint a suitable and competent person as secretary and treasurer. The board of directors shall keep a set of books and records, in which they shall cause to be entered and recorded, in an appropriate and business-like manner, all their appointments, rules and business transactions; and these boobs shall, at all proper times, be open to the inspection of such persons or their agents as shall be interested therein. And the said board shall have power to make rules for the conduct of the business of the association, including mode and time for receiving salt, inspection of quality, mode of settling with manufacturers, and inspection of cooperage, to appoint agents, fix their compensation, and through such agents, and under such rules as they may prescribe, shall have power to transact all the business of this company, and to do whatever may be necessary, in the opinion of the board, tc carry out most advantageously the objects of this association.
    ‘A quorum shall consist of such members as represent a majority of the manufacturing companies composing this association.
    “July 18, 1857.”
    “Office Ohio River Salt Co., ) “August 1, 1857. )
    
    ‘ ‘ Board of directors met agreeable to adjournment. President called the meeting to order. Minutes of former meet ings read, and on motion approved.
    “ Committee on rules and regulations made the following report, which was adopted:
    “article 1st.
    “The president to preside at meetings, to exercise supervision over the business of the company, and call special meetings of the board when necessary.
    “The secretary to keep records of meetings, books and accounts, as directed by the board, open at all proper times to the inspection of companies interested.
    “The treasurer to receive and disburse funds of company, and to attend to financial negotiations generally.
    “•The shipping agents to be governed by direction of the board through president or secretary.
    “ The local agents to be governed by direction of the board through president or secretary.
    “ There shall be a meeting of the board of directors at the office of the company, on the second Tuesday of each month. Meetings may be called by the president at other times on his own motion, or at the request of two directors.
    “ The board shall take cognizance of the affairs of the company in as much detail as practicable; shall from time to time give directions as to the distribution and price of salt, but may confer upon the president the power to direct as to the distribution of salt, and to fix and change prices, and also upon principal agents the power to determine from time to time the price of salt in their respective districts.
    
      ART. 2».
    “ Uniform good quality of salt shall be aimed at, and good, cooperage. To secure these ends, salt shall be drained ten-days before it is received by this company, and shall be inspected and weighed by an agent of this company. Barrels-shall be well made, of seasoned timber; shall be sound and good, and have not less than ten good hickory hoops each, to be carefully examined when received; barrels on hand, now excepted.
    art. 4th.
    “ Returns shall be made to the office of the company from all the agencies at least once in each quarter, or oftener if required.
    ART. 5TH.
    “The treasurer of the company shall have power to indorse in the name of the company all the paper received for salt sold, and each member of the company shall be bound, for the indorsement. No paper shall be made by the company, except by special vote of the directors — two-thirds of' the directors present voting in favor.
    art. 6th.
    “ Provision shall be made at as early a day as practicable to-have all the salt freighted in steamboats and barges.
    art. 7th.
    “ Dairy and table salt may be made by any member of this-company. The price allowed to each company shall be in proportion to the proceeds compared with common salt.
    art. 8th.
    “The secretary of each salt company to report to the secretary of the Ohio River Salt Co. the amount received for retail sales and pay over the same monthly.” '
    R. R. Hudson made the following statement: “ Eor the-purpose of making an equitable distribution of salt in the various markets, to avoid competition in price, and reduce cost of handling salt, the plaintiffs agreed to and appointed joint agents to ship and sell salt, who were under the imme* diate control and direction through a secretary, all of the plaintiffs having an equal voice in controlling, and all agreeing to and paying their proportion of expense, and receiving their proportion of sales pro rata per bushel for the amount of salt deposited with these agents. To transport this salt to market the plaintiffs purchased quite a large number of barges, lines and other equipment, which property is scattered and used on the Ohio, Mississippi, Cumberland and Illinois rivers. This property is never all of it in this State, county or township, and but a small portion of it is ever in this county at one time, and especially so in the spring, when heavy shipments are made, which happens to be the time for listing property for taxation. Over one-third of this property is now owned in the State of West Virginia. At the time of year when property is listed for taxation, a valuation of this property is made out pro rata to each plaintiff — each plaintiff listing and paying their own tax, except the Excelsior Salt Company, in 1865, who were induced not to list their portion, through the influence of the county auditor. This property is not owned or claimed to be owned by these agents. They use it under the control of and direction of the plaintiffs who are the sole and exclusive owners.
    “I am secretary and treasurer and managing agent of the Ohio River Salt Company. Furnaces located partly in Mason county, West Virginia, and partly in Meigs county, Ohio. Home office of Ohio River Salt Company, was located in Coalport, Meigs county, Ohio, for the reason that inside there each Salt Company has a representative or member in Ohio River Salt Company to direct agency. Property used by Ohio River Salt Company consists of barges, lines, &c., bought by the Ohio River Salt Company, and assessment made on each company for pro rata when necessary to pay the same. The property in 1865 listed for taxation, by making aggregate estimate of all the property, and dividing to each in proportion to quantity of salt furnished Ohio River Salt Company by each. In this way all the property used by Ohio River Salt Company is listed for taxation. The name ‘ Ohio River Salt Company ’ was adopted merely for convenience in managing and carrying on joint business of selling salt manufactured by all the plaintiffs. All contracts for sales of salt made in the name of the ‘Ohio River Salt Company;’ all purchases made by the same. We make no purchases only such as are incident to and necessary to carry on the business of shipping and selling salt, except the purchase of some salt prior to and since 1865. The plaintiffs are consulted in reference to purchase of salt before made by agents of ‘ Ohio River Salt Company.’ I return to furnaces in West Virginia list for taxation, same as to those in Ohio. But small portion of property used by Ohio River Salt Company is in this county at any one time. The barges, lines, &c., used by the furnaces in shipping their salt. Some of the property never here. ‘ Ohio River Salt Company ’ at times takes temporary leases, in its name, of real estate for purposes of storing salt. Have agents in Louisville, Cincinnati, St. Louis, &c. Office furniture at Louisville, Cincinnati and St. Louis. Also lines used for fastening barges. Proceeds of salt sold divided pro rata monthly, and passed to furnaces respectively, less expenses incurred in shipping and selling.
    And on cross-examination further states “that, agents of Ohio River Salt Company at different points settle with me here ; they do the business in the name of the ‘ Ohio River Salt Company,’ and are under direction of board of ‘ Ohio River Salt Company.’
    “All the property included in list of taxation, whether here or elsewhere. The plaintiffs individually cannot control the property used oy Ohio River Salt Company. It is all under control of agency. All hands are hired and directed by the Ohio River Salt Company. We have sometimes lumber on hand to repair barges. Ohio River Salt Company owns two horses and two buggies. Ohio River Salt Company executes notes in its own name. When suits are brought plaintiffs are named. Company was organized May 17th, 1857. Prior to 1865 property was listed in the name of ‘Ohio River Salt Company. ’ Has a president. Adopted articles of association and by-laws. Salt of all companies must pass through the hands of ‘ Ohio River Salt Company ’ for purpose of sale, except a small retail business. (The third article of constitution not enforced since the first year.)
    Y. B. Horton testified as follows : “I helped organize the company. The delegates control all the operations of the company. The board decided that under the present organization ‘ Ohio River Salt Company ’ could not own steamboats. The mode of assessment changed by board prior to 1865, making it the duty of Mr. Hudson to furnish each company with its proportion of property to be listed by them for taxation.”
    It is admitted that the auditor of Meigs county notified the salt company that they must list in the name of “ Ohio River Salt Company” for the years 1865 and 1866.
    
      Simeon Wash for plaintiffs in error
    I. The statute (62 O. L. 106 ; S. & C. 1446) requires property of this character to be listed as a part of the personal property of an individual or. corporation, if he has even an equitable title thereto. There can be no doubt that, in equity, these plaintiffs are the owners of this property as tenants in common. Ex parte Young, 2 Ves. & Bea. 242; Ex parte Harrison, 2 Rose, 78, note; 2 Rose Cases in Bank, 76 ; Ex parte Parry, 5 Ves. 575 ; Nicoll v Mumford, 4 Johns. Ch. 522 ; Merrit v. Bartlett, 6 Pick. 46 Thorndike v. DeWolf, 6 Pick. 120 ; West. Transp. Co. v. Schew, 19 N. Y. 408.
    II. There was here no partnership ; this association was a mere agency, and, hence, that this property was owned by these plaintiffs as tenants in common, because,
    1. The association has not'one of the elements of a partnership ; it has no capital, has no business whereby profit is to be made ; there are to be no profits to be divided, no losses to be borne in common. Puffendorf, Lib. 5, cap. 8; Waugh 
      v. Carver, 2 H. Bla. 246 ; Coope v. Eyre, 1 H. Bla. 37 ; Gow on Part. 1 ; 3 Kent Com. 23 ; Story on Part. 2, 3, 7, 22, 23 ; Cox v. Hickman, 8 H. L. C. 268 ; Bullen v. Sharp, L. Rep., 1 Com. Pleas, 86 ; Dwinel v. Slone, 30 Maine, 384, 386 ; Johnson v. Miller, 16 Ohio, 431; Clark v. Griffith, 24 N. Y. 595 ; Collyer on Part. B. 1 Ch. 1, sec. 1, p. 11, (2d ed.)
    2. It was not the intention of these companies to form a partnership, but a simple agency — a mandate, as Judge Story calls it. Partnership is the creature of a voluntary ■contract; if the parties did not intend to enter into a partnership, then the court cannot, as between themselvés, hold them to be partners. In re The Worcester Corn Exchange Co. 19 E. L. & E. Rep. 627.
    3. These corporations had, legally, no power to enter into the contract of partnership, and, hence, there was no partnership. 5 Ohio St. 59; 12 Ohio St. 601; Calloway Co. v. Clark, 32 Miss. 305 ; South Wales R. R. Co. v. Redman, 10 C. B. N. S. 1075 ; Ang. & Ames Corp. 53 ; Prop, of Canal Bridge v. Gordon, 1 Pick. 305; Marine Bank v. Ogden, 29 Ill. 248 ; Whittenton Mills v. Upton, 10 Gray, 582 ; Pearce v. Mad. & Ind. R. R., &c. 21 How. (U. S.) 441.
    The court will assume that the laws of West Virginia are like the laws of Ohio on these subjects of corporate powers .and taxation. 3 Phil. Ev., by Cowen & Hill, 1137 ; Allen v. Watson, 2 Hill, 319, 322 ; Sherrill v. Hopkins, 1 Cowen, 103 ; Legg v. Legg, 8 Mass. 99 ; Holmes v. Moughton, 10 Wend. 75 ; Arago v. Cursell, 1 Mill Lou. Rep. 541 ; Crozier v. Hodge, 3 Mill Lou. Rep. 357.
    III. This judgment cannot be supported on the ground that it was property in the hands of an agent, because,
    1. The owner is required to list his personal property, which words, personal property, include this species of property. Tax Law, sec. 4 (62 O. L. 106.)
    2. Agents are only required to list money and credits, and not personal property. Ib.
    
    3. The listing and entry by the auditor is not on the ground of an agency, but on the ground that the Ohio River Salt Company is a partnership owning this property, and that ground cannot now be changed.
    If, then, there is here no partnership which can hold the-legal title to this property, then this tax was illegal, and should be declared so. There is no other ground upon which the judgment can be maintained, and that ground is clearly untrue in fact, and untenable in law.
    The corporations were, then, right in giving in the value of their respective interests in this personal property, and having it listed and assessed in the place where the corporations had their respective residences. West. Transp. Co. v. Schew, 19 N. Y. 408. That being admitted, then this tax, assessed on this property by the auditor on his own listing, is illegal and void, and its collection should be enjoined.
    
      Martin Hays for defendant in error:
    Ships or steamboats are chattel property, and can be sold and transferred by parole contract, as far as the ownership-is concerned, as well as any other chattels. Oliver v. Green, 3 Mass. 133 ; Bartlett v. Walter, 13 Mass. 137 ; Ogle v. Eagle Insurance Co. 4 Mason, 390. And can be a subject of partnership, like other chattels, by the agreement of the parties. Patterson v. Chalmers, 7 B. Mon. 497, 595 ; Doddington v. Hallett, 1 Ves. Sr. ; Mumford v. Nicol, 20 Johns. 611, reversing the case of Nicol v. Mumford, 4 Johns. Ch. 522 : Hewitt v. Sturdivant, 4 B. Mon. 453 ; Hinton v. Law, 10 Misso. 701; Gardners. Cleveland, 9 Pick. 334; Parsons on Partnership, 549.
    If the Ohio Eiver Salt Company is a joint stock company or a partnership, the president, principal accounting-officer, partner, or agent, should list for taxation all the-chattel property owned by the concern. Tax Law, sec. 16.
    The Ohio Eiver Salt Company is a joint stock company, and, by its agent, should, under the tax law as amended April 6, 1865, have listed the property in the hands and under the control of the company. Welland Canal v. Hathaway, 8 Wend. 480 ; Catskill Bank v. Gray, 14 Barb. 471 ; 
      
      Bary v. Merchants’ Exchange Co. 1 Saunders’ Ch. 80 ; Ang. & Ames on Corp., § 96, p. 87 ; The People ex rel The Att’y Gen’l v. The Utica Ins. Co. 15 Johns. 357 ; Lawler v. Walker et al. 18 Ohio, 151; The State v. Washington Social Library, 11 Ohio, 96 ; Lessee of Knowles et al. v. Beaty, 1 McLean’s Rep. 41 ; Story on Agency, §§ 59, 80, 81, 84, 88, 488, 507; Hunt v. Rousmanier, 8 Wheat. 201; Moss v. Rossie Lead Mining Co. 5 Hill, 137 ; Sec. 59 of the tax law; Providence Bank v. Billings, 4 Peters, 514 ; Brewster v. Hough, 10 N. H. 138.
    If the Ohio River Salt Company is the mere agent of the several plaintiffs, having the joint property of the several plaintiffs under its control, for the purpose of doing the business of the plaintiffs in vending and shipping salt, and doing the general business of the company in that respect, it was bound, under the tax law, as such agent to list the property in its hands and under its control.
   McIlvaine, J.

It is admitted by all parties that the boats, barges, lines, &c., used in the transportation of plaintiffs’ salt to market, should be listed and taxed as other personal property. By whom ? In whose name ? And in what district ? These are the questions in controversy.

That the Ohio River Salt Company had an existence, and management, and that it was the agency by which the plaintiffs’ salt was transported to market and sold, are undisputed facts. But in order to arrive at proper answers to the above questions, it is necessary to understand the mode and means in and by which the company was formed, organized and managed, as well as the nature and extent of its agency.

The Ohio River Salt Company, was established by the plaintiffs, and they constitute its sole membership. This is evident from the articles of association, which is the fundamental law of the company. The preamble &c. is as follows:

“ For the purpose of insuring system and unity of action in the disposition of salt, the undersigned manufacturers of salt agreed to form themselves into an association, and have adopted the following article.- :
“ Article 1st. — The association shall be called the Ohio River Salt Company.
“ Art. 2d. — The business of the company shall be the shipping, transportation and sale of the salt made by the members of the association, and the company may, if deemed for its interest, buy such salt from others than members of the association.
“ Art. 3d. — Salt manufacturers may become members of this association by subscribing these articles, binding themselves to deliver all the salt made by them, and to conform to all the rules made in pursuance of the provisions of these articles, as to the delivery of salt, cooperage, and general conduct of the business.

The members of the board of directors are not members of the company, but only representatives of the plaintiffs in the management of its affairs, as appears from the 4th article of the constitution of the association, to wit:

“ Art. 4th. — The board of directors shall be chosen annually in the following manner, to wit: Each salt company being a member of this association shall elect a delegate to represent its interest and to act as a member of the board of directors. The persons so chosen shall constitute the board of directors of this association.

The board of directors was not invested with authority over the individual property or affairs of the members of the association, but only with authority to organize and regulate the company and its business in detail, to appoint agents for the company and fix their compensation, and through such agents to transact all its business, aud to do whatever in the opinion of the board was necessary to carry out most advantageously the objects of the association, as prescribed in the fifth article :

“ Art. 5th. — The board of directors shall elect one of their members as president, and shall appoint a suitable and competent person as secretary and treasurer. The board of directors shall keep a set of books and records in which they shall cause to be entered and recorded, in an appropriate and business like manner, all their appointments, rules and business transactions; and these books shall at all proper times be open to the inspection of such persons or their agents as shall be interested therein. And the said board shall have power to make rules for the conduct of the business of the association, including mode and time for receiving salt, inspection of quality, mode of settling with manufacturers, and inspection of cooperage, to appoint agents, fix their compensation, and through such agents and under such rules as they may prescribe, shall have power to transact all the business of this company, and to do whatever may be necessary in the opinion of the board to carry out most advantageously the objects of this association.
“A quorum shall consist of such members as represent a majority of the manufacturing companies composing this association.”

On the 31st day of July, 1857, the delegates chosen by the members of the company met and organized the board of directors, and on the following day adopted rules and regulations for the management of the business of the company ; ■established a home office on the Ohio river, in Miegs county, Ohio, and constituted the secretary and treasurer of the company the principal or managing agent of the company, and placed him in charge of the home office.

The Ohio River Salt Company, thus constituted, bought a large number of boats, barges, lines, &c., in its own name, to be used in the shipment of plaintiffs’ salt; appointed agents at Louisville, Cincinnati, St. Louis, &c., to whom the salt was shipped, and by whom it was sold. These sub-agents made monthly returns to the managing agent at the home office. The company receives all the salt made by its members, and, after shipment and sale, divides the proceeds, less the expenses, among the members of the company pro rata according to the number of bushels of salt delivered by each to the company. All purchases and contracts are made in the name of the company. All the hands are hired, directed and paid by it. The members of the company cannot individually control the property used by the company. Notes are executed by the company in its own name, and are taken and endorsed in the same way. Suits are prosecuted and defended by the company, using however the names of the plaintiffs.

Such is a substantia] description of the formation, organization, management and businness of the Ohio River Salt Company. And the question now is, whether the boats, barges, lines, &c., used by it in the management of its business have been properly and legally listed and taxed in its name, and in the district of its home office, in which its managing agent resides.

It is claimed by the plaintiffs that this property can only be listed and taxed by and in their, names respectively ; that is, that the interest of each member of the company in this property, should be listed and taxed in the name of such member, and in the taxing district where the other personal property of such member is rightfully listed and taxed. And this proposition is sought to be maintained principally upon the ground, that the Ohio River Salt Company is not a corporation or a copartnership, and therefore can not be required, under the 4th section of the tax law of April 5, 1859, as amended April 8, 1865, (S. & S. 756,) to list its property for taxation.

The 4th section provides, that “ Every person * * * shall list * * * the personal property of which he is the owner,” &c.; and that “the property * * * of every company, firm, body politic or corporate” shall be listed “by the president or principal accounting officer, partner or agent thereof. * * * Every person required to list property on behalf of others * * * shall list it in the same township in which he would be required to list, if such property was his own.”

Now, although “ company” may well be said to embrace a “ firm,” yet we think it was used in this connection in a more comprehensive sense, for there are many unincoporated bodies which are not, strictly speaking, copartnerships, that own personal property subject to taxation under the laws of this State. And, no doubt, the legislature intended to embrace all such within the meaning of “ company,” though they be not “ firms ” or copartnerships.

We are not called upon, therefore, to determine whether or not the Ohio River Salt Company is a corpartnership, in the technical meaning of that term, but simply to ascertain if it be a “ company” owning property subject to taxation within the meaning of said 4th section.

Passing for a moment from the question of ownership in this company. It is claimed by the plaintiffs that if this property is subject to taxation in the name of the Ohio River Salt Company, under the provisions of the 4th section, it must nevertheless be listed, in fractional parts or shares, by the plaintiffs, or so many of them as are corporations in this State, under the provisions of the 16th section of the act of 1859 ; and thus double taxation is the result.

If it should be determined that the language used in the 16th section (which describes the property certain corporations are required to list) is broad enough to include the plaintiffs and the interest they have in this property, still, we apprehend they would be relieved from double taxation, as would a natural person, under the provisions of the ninth clause of the 3d section, S. & C. 1441, which provides as follows: “No person shall be required to include in his statement, as a part of the personal property, moneys, credits, investments in bonds, stocks, joint stock companies or otherwise, which he is required to list, any share or portion of the capital stock or property of any company or corporation which is required to list or return its capital and property for taxation in this State.”

Returning then, to the question of the ownership of these boats and barges. We admit the general rule, that part owners of boats and vessels are tenants in common, and not joint tenants; yet it does not follow that such boats and vessels cannot be acquired and held jointly, as, for instance, by a partnership, or other joint company, whether incorporated or unincorporated. And in either case, there is no doubt that the stockholders, or members of the company, have au equitable interest in the property, as it must be regarded as •owned and held in trust for them by the company ; nevertheless the ownership in the company is such, that, under •our system, the property must be listed and taxed in the name of the company.

With regard to the salt delivered by each of the plaintiffs to the Ohio River Salt Company, it may be, as claimed by plaintiffs, a case of mandate, a bailment without reward, for shipment and sale, wherein no special property or interest is acquired in the subject of the mandate, by the mandatory ; and, hence, each manufacturer should list, with its ■or his other personal property the salt so owned by it or him, although in the possession and custody of the bailee.

But these questions are not before us for decision. We ■can only enquire, in this case, as to the relations of these parties to the boats, barges, lines, &c. This distinction, .however, must be observed, viz.: that there has been no delivery of this last-named property to the Ohio River'Salt Company by the plaintiffs, either jointly or separately,— neither actually nor constructively. Now, delivery is' •of the very essence of the bailment, and without which the relation of bailor and bailee does not exist. As to these boats and barges, therefore, the case of a mandate does not •arise.

It is true, that this property was purchased with the plaintiffs' money, either directly or indirectly, and, therefore, a trust results, under the circumstances, in their favor. But this is so in all cases of corporations and copartnerships, •and we can see no reason why the ownership should be regarded as a tenancy in common in one case, more than in the other ; and in the latter it is quite clear that the ownership is joint only.

This property is not purchased nor held in the names of the plaintiffs, nor is it subject to their individual control. In every sense of the word, there is a joint interest and ownership in this property as between the plaintiffs; that •each holds per my et per tout, — the legal title being in the Ohio River Salt Company, coupled with a right to use and control the property for all the purposes of the trust or agency.

Nor do we see any want of capacity in the plaintiffs,, although they be corporations, to enter into this joint enterprise, there being no departure, in the line of its business, from the scope of their corporate powers, to wit, to make- and sell salt. But even if it were so, that they, as corporations, lacked power to enter into this joint enterprise, it is exceedingly doubtful whether they, in their corporate names,, should be permitted, as against the State of Ohio, to resist taxation in such form as would undoubtedly be proper, had. their powers been co-extensive with their purposes and actual dealings.

Again, it is said that this property is seldom in the State-of Ohio, and never all at the same time ; that it is as much in the State of West Virginia, where a large interest in it. is owned, as in this State; that in transporting plaintiffs’ salt to distant markets, it is chiefly used in navigating the. Tennessee, Illinois, Wabash and other rivers, not within nor; bordering upon the State of Ohio ; but that the interests-owned in this State are held by parties subject to taxation in different districts. It is therefore claimed to be unjust,- and not within the meaning and intent of our statute, that the .whole amount of the property should be taxed in one locality and subjected to its local burdens, while other localities equally interested in the property are wholly deprived, of the benefits of its taxation.

In reply to these arguments it is sufficient to say that we must be controlled in this matter by the legislative will, when expressed within the limits of legislative power. In. Perry v. Terence, 8 Ohio, 521, it was held, under the statute then in force, that steamboats owned by citizens of this State and employed in navigating waters within or bordering upon the State, were property subject, within the legislative discretion, to taxation in this State, although also -used in other waters neither within nor bordering upon the-State ; and that it was subject to taxation in the place where; the owners resided. Like statutes are still in force.

We have already shown that the boats in question were owned by the Ohio River Salt Company — an association organized in this State, with its principal office in this State, at Middleport, on the Ohio river, and in the district where they were taxed, at which place the managing agent of the company also resided. It appears to us, then, that Middle-port must be regarded as the home port of these boats— the place where the owners thereof resided within the meaning of this statute.

If citizens or corporations of one taxing district invest their means and become members of a company which by law is required to list its property in another district, they have no right to complain. And if non-residents or foreign corporations become interested in property situate in this State in like manner, it is competent for the legislature to impose its burdens of .taxation upon such property in the district where it is situated and controlled.

On the whole case, although not free from difficulty, we are of opinion that the boats, barges, lines, &c., used by the Ohio River Salt Company were lawfully taxed in the name of the company in the taxing district where its home office was located, and in which its managing agent resided.

Judgment affirmed.

Welch, C. J., and White, Day and West, JJ., concurred.  