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and costs due severally thereon for the years and blocks as an addition to the city of Gir1903 and 1904, and previous years when un- ard. For some reason this small piece of paid; and for an order to sell said lands land was not described in the plat. From and lots for the satisfaction thereof." At the year 1866, or a few years prior thereto, the end of said delinquent list said county there appears to have been a grain elevator treasurer and ex officio collector of taxes or warehouse on this disputed piece of certified "that the foregoing is a list of delin- ground. It was never used or occupied by quent lands and lots upon which taxes re- Boggess, and the record does not disclose who main due and unpaid for the years 1902 and erected the buildings. They, together with 1903 and previous years.” The statement the land in the triangular tract mentioned, that application for judgment would be were continuously in the possession of some made for the taxes for certain specified one else, and were used in buying and years and previous years is not a compliance handling grain up to the time of the comwith the statute that "said advertisement

mencement of this suit. W. S. Garretson * *

shall contain a list of the delinquent testified that in 1876 he became associated lands and lots upon which the taxes or with a Mr. Benion in the possession of the special assessments remain due and unpaid warehouse and ground, and so continued * * * and the year or years for which

about 2 years, when Walker and Minnier the same are due.” Gage v. People, 188 Ill.

became associated with him; that he and 92, 58 N. E. 947. Some other objections are they occupied the premises in conducting a made to the validity of this judgment, but,

grain business for 2 or 3 years, when appelas it must be reversed for the reasons indi

lant became associated with the witness, cated, we deem it unnecessary to discuss

and they together continued the business and them.

the occupation of the premises until 1885 or The judgment of the county court is re

1886, when he sold out to appellant. Appelversed.

lant and others representing him have had Judgment reversed.

possession continuously since that time. The answer of appellant denied that complain

ants had any interest in the land, and set (222 Ill. 556)

up and relied on the 21-year statute of limPAGE V. BELLAMY et al.

itations. Upon a hearing the court found (Supreme Court of Illinois. Oct. 23, 1906.)

against appellant, and decreed a partition 1. ADVERSE POSSESSION CLAIM OF TITLE>

of the premises as prayed in the bill. From EVIDENCE-SUFFICIENCY. In partition proceedings, in which the de

that decree, appellant, E. W. Page, prosecutes fense was adverse possession, evidence examined, this appeal. and held to sustain a finding that the land was There is no question that the legal title not occupied under claim of ownership, but by

was in Barnabas Boggess at the time of his sufferance.

death. The sole defense relied upon was and 2. SAME.

To acquire title under the 20-year statute is that appellant, and those under whom he of limitations, it is essential that the occupancy claims, had been in the continuous, unintershall be under claim of title or ownership.

rupted, adverse, and hostile possession of the [Ed. Note.For cases in point, see vol. 1,

land, under claim of ownership, for more Cent. Dig. Adverse Possession, 88 387-393.)

than 20 years prior to the commencement Appeal from Circuit Court, Macoupin Coun

of the suit. The proof does not sustain this ty; R. B. Shirley, Judge.

claim. While it appears they had been in Bill by Laura M. Bellamy and others

possession more than 20 years, such posagainst E. W. Page and others. From a de

session was not accompanied by any claim cree for plaintiffs, said Page appeals. Af

of ownership. None of the parties who had firmed.

been in possession of the land prior to the Keefe & Peebles (Frank G. Wood, of coun- time Garretson became connected with Bensel), for appellant. Charles C. Terry, for ap- ion, in 1876, testified on the hearing. Garretpellees.

son was a witness, and testified he never had

any interest in the land, and that he and FARMER, J. Appellees filed a bill in the Benion never claimed to own the ground the circuit court of Macoupin county for the warehouse stood on, and that neither Walker, partition of a triangular piece of ground Minnier, nor Page, the appellant, claimed to containing about one-seventh of an acre, ly- own it while he was associated with them. ing in the city of Girard, on the west side He said he understood Boggess and the railof and adjacent to the right of way of the road company owned it, and, while he and Chicago & Alton Railroad Company. It was his associates claimed the building, they ocoriginally a part of a tract of land belonging cupied the land by permission and sufferance to Barnabas Boggess. Complainants claim of its owners without the payment of rent title as heirs and grantees of said Barnabas or taxes. The land appears never to have Boggess. Some time in 1866 Boggess platted been listed for taxation until 1897, when apthe land belonging to him, which surrounded pellant caused it to be listed for the purthe triangular tract in controversy, into lots pose of allowing it to be sold for taxes and

securing title to it in that way. His wife

(186 N. Y. 220) bought it at the tax sale in 1898, and after

In re COOLEY'S ESTATE. . receiving a tax deed conveyed the premises (Court of Appeals of New York. Oct. 16, to her husband. This was the first and

1906.) only color of title he had to the land. The TAXATION TRANSFER

TAX

CORPORATE conveyance from Garretson of his interest

STOCK-VALUATION.

Laws 1896, p. 868, c. 908, $ 220, as amendin the premises to Page, in 1886, describes

ed by Laws 1897, p. 150, c. 284, § 2, imposes a the property conveyed as "the undivided one tax on the transfer by will of any personal half interest in one warehouse and elevator, property within the state where decedent was together with all their appurtenances, such

a nonresident of the state at the time of his

death. Held, that where, in good faith, a New as engine, boiler, dump scales, wheat fan,

York railroad corporation and a Massachusetts corn burrs, grain truck, etc.; also the office corporation consolidated, and the consolidated building, and the scales attached thereto, corporation was separately organized under the and the furniture contained therein, situated

laws of each state, and there was but a single

issue of capital stock representing all the propon land owned by the Chicago & Alton Rail. erty of the consolidated corporation, and oneroad Company, on the west side of the track sixth of the track mileage was in New York and north side of Center street; also the un

and the remainder in Massachusetts, stock in

such corporation belonging to a nonresident divided one-half interest in a one-story wood should be taxed by regarding the New York warehouse, together with the office building, corporation as owning the property situate in situated on said railroad switch and near

New York, and the Massachusetts corporation

as owning that situate in Massachusetts, and the south terminus of the same, and on the

each as owning a share of any property situate south side of Madison street, and all other outside of either state or moving to and fro fixtures or appurtenances thereunto in any between the two states. wise belonging.” The property is similarly

Werner and Chase, JJ., dissenting. described in a conveyance from Robert J. Appeal from Supreme Court, Appellate Walker to

to appellant. In 1888 appellant Division, First Term. made an assignment to John Ball, as as Appeal by Charles P. Cooley and others, signee, for the benefit of his creditors, and in

as executors of Francis B. Cooley, deceased, his schedule to the deed of assignment he from an order of the Supreme Court (98 N. described the interest in the premises con Y. Supp. 1006), affirming an order of the veyed as "one warehouse situated on above Surrogate's Court, fixing the transfer tax described railroad lands, known as the 'Ben upon the estate of decedent. Reversed. ion Warehouse."

Charles P. Howland, for appellants. This proof conclusively shows that the

Charles M. Russell, for respondent. land was not occupied under a claim of ownership, but was occupied, as was testi

HISCOCK, J. The appellants complain befied to by Garretson, by permission or suf

cause in fixing the transfer tax upon certain ferance of the supposed owners. To enable

shares of the capital stock of the Boston & one to acquire title under the 20-year statute

Albany Railroad Company which belonged to of limitations, it is essential that the occu

the estate and passed under the will of the pancy shall be under claim of title or owner

deceased, who was a nonresident, said stock ship. “The adverse possession which is re

has been appraised at its full market value quired to constitute a bar to the assertion

as representing an interest in the property of of a legal title by the owner of it must in

said corporation, situate both in the state clude these five elements: It must be (1)

of New York and elsewhere. It is insisted hostile or adverse; (2) actual; (3) visible, no

by them that under the peculiar facts of this torious, and exclusive; (4) continuous; and

case the valuation placed for such purpose (5) under a claim or color of title.” Zirngibl

upon the stock should not have been predicatv. Calument Dock Co., 157 Ill. 430, 42 N. E.

ed upon the idea that the latter represented 431. This language is repeated in Illinois

an interest in all of the property of said corCentral Railroad Co. v. Hatter, 207 Ill. 88,

poration, but should have been fixed upon 69 N. E. 751, and Roby v. Calumet & Chica

the theory that it represented an interest go Dock Co. 211 Ill. 173, 71 N. E. 822. In

in only a portion of said property. I think the latter case it was said : And all these

that their complaint is well founded, and elements must be made out by clear and pos

that the order appealed from should be reitive proof.” In Zirngibl v. Calumet Dock versed and the assessment corrected accordCo., supra, it was said: "Adverse possession ingly. cannot be made out by inference or implica The Boston & Albany Railroad Company tion, for the presumptions are all in favor is a consolidation formed by the merger of of the true owner, and the proof to establish one or more New York corporations and one it must be strict, clear, positive, and unequiv Massachusetts corporation. The merger was ocal.” The proof relied on by appellant to authorized and the said consolidated corsustain his title does not meet the require-poration duly and separately created and ments of the authorities, and the court prop- organized under the laws of each state. It erly decreed a partition of the premises, and was, so to speak, incorporated in duplicate. the said decree will be affirmed,

There is but a single issue of capital stock Decree affirmed.

l'epresenting all of the property of the con

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solidated and dual organization. Of the track mileage about five-sixths is in Massachusetts and one-sixth in New York. The principal offices, including the stock transfer office, are situated in Boston, and there also are regularly held the meetings of its stockholders and directors. The deceased was a resident of the state of Connecticut and owned 426 shares of the capital stock, the value of which for the purposes of the transfer tax was fixed at the full market value of $252.50 per share of the par value of $100.

The provisions of the statute (Laws 1896, p. 868, c. 908, $ 220, as amended Laws 1897, p. 150, c. 284, § 2) authorizing the imposition of this tax are familiar, and read in part as follows: "A tax shall be and is hereby imposed upon the transfer of any property, real or personal, of the value of five hundred dollars or over, or of any interest therein in the following cases:

* * * 2. When the transfer is by will or intestate law, of property within the state, and the decedent was a non-resident of the state at the time of his death.” The present assessment is under the last clause, and, as already intimated, the sole question, stated in practical form, is whether the authorities of this state ought to levy a tax upon the full value of decedent's holdings, recognizing simply the New York corporation and regarding it as the sole owner of all of the property of the doubly incorporated New York-Massachusetts corporation, or whether they should limit the tax to a portion of the total value, upon the theory that the company holds its property in Massachusetts at least under its incorporation in that state. By seeking the aid of our laws and becoming incorporated under them the consolidated Boston & Albany Railroad Company became a domestic corporation. Matter of Sage, 70 N. Y. 220. The decedent, therefore, as the owner of Boston & Albany stock, may be regarded as holding stock in a domestic corporation, and it is so clearly settled that we need only state the proposition that capital stock in a domestic corporation, although held by a nonresident, will be regarded as having its situs where the corporation is organized, and is, therefore, taxable in this state. Matter of Bronson, 150 N. Y. 1, 44 N. E. 707, 34 L. R. A. 238, 55 Am. St. Rep. 632.

There is, therefore, no question but that the decedent, holding stock in the Boston & Albany Road, which was incorporated under the laws of this state, left "property within the state" which is taxable here. There is no doubt about the meaning of "property within the state” as applied to this situation, or that it justifies a taxation by our authorities of decedent's interest as a shareholder in the corporation created under the laws of this state. The only doubt is as to the extent and value of that interest for the purposes of this proceeding. For, although the tax is upon the transfer and not upon the property

itself, still its amount is necessarily measured by the value of the property transferred, and therefore we come to consider briefly the nature of the stock here assessed as property and the theory upon which its value should be computed. The general nature of a shareholder's interest in the capital stock of a corporation is easily understood and defined. In Plimpton v. Bigelow, 93 N. Y. 592, it is said that “the right which a shareholder in a corporation has by reason of his ownership of shares is a right to participate according to the amount of his stock in the surplus profits of the corporation on a division, and ultimately on its dissolution, in the assets remaining after payment of its debts." In Jermain v. L. S. & M. S. Ry. Co., 91 N. Y. 483, 491, it was said: “A share of stock represents the interest which the shareholder has in the capital and net earnings of the corporation." Therefore, since the shares of capital stock under discussion represented a certain interest in the surplus of assets over liabilities of the Boston & Albany Railroad Company, the value of that stock is to be decided by reference to the amount of property which said railroad company as incorporated in this state is to be regarded as owning for the purposes of this proceeding.

In the majority of cases at least, a corporation has but a single corporate creation and existence under the laws of one state, and by virtue of such single existence owns all of its corporate property. There is no difficulty in determining in such a case that a shareholder under such an incorporation has an interest in all of the corporate property, wherever and in how many different states situated. I shall have occasion to refer to that principle hereafter in another connection. Even in the case of a corporation incorporated and having a separate existence under the laws of more than one state, the stockholder would for some purposes be regarded as having an interest in all of the corporate property independent of the different incorporations. In the present case the decedent, by virtue of his stock as betweeen him and the corporation, would be regarded as having an interest in all of its property and entitled to the earnings thereon when distributed as dividends and to his share of the surplus upon dissolution and liquidation proceedings independent of the fact that there were two separate incorporations.

But, as it seems to me, different considerations and principles apply to this proceeding now before us for review. Our jurisdiction to assess decedent's stock is based solely and exclusively upon the theory that it is held in the Boston & Albany Railroad Company as a New York corporation. The authorities are asserting jurisdiction of and assessing his stock only because it is held in the New York corporation of the Boston & Albany Railroad Company. But we know that said company is also incorporated as a Massachusetts corporation, and presumably by virtue of such

latter incorporation it has the same powers of owning and managing corporate property which it possesses as a New York corporation. In fact, the location of physical property and the exercise of various corporate functions give greater importance to the Massachusetts than to the New York corporation, and the problem is whether for the purpose of levying a tax upon decedent's stock upon the theory that it is held in and under the New York corporation we ought to say that such latter corporation owns and holds all of the property of the consolidated corporation wherever situated, thus entirely ignoring the existence of and the ownership of property by the Massachusetts corporation. It needs no particular illumination to demonstrate that, if we take such a view, it will clearly pave the way to a corresponding view by the authorities and courts of Massachusetts that the corporation in that state owns all of the corporate property, wherever situated, and we shall then further and directly be led to the unreasonable and illogical result that one set of property is at the same time solely and exclusively owned by two different corporations and that a person holding stock should be assessed upon the full value of his stock in each jurisdiction. Whether we regard such a tax as is here being imposed a recompense to the state for protection afforded during the life of the decedent, or as a condition imposed for creating and allowing certain rights of transfer or of succession to property upon death, we shall have each state exacting full compensation upon one succession and a clear case of double taxation. And, if the corporation had been compelled for sufficient reasons to take out incorporation in 6 or 20 other states, each one of them might take the same view and insist upon the same exaction until the value of the property was in whole or large proportion exhausted in paying for the privilege of succession to it. While undoubtedly the legislative authority is potent enough to prescribe and enforce double taxation, it is plain that, measured by ordinary principles of justice, the result suggested would be inequitable and might be seriously burdensome. Double taxation is one which the court should avoid whenever it is possible within reason to do so. Matter of James, 144 N. Y. 0, 11, 38 N. E. 961. It is never to be presumed. Sometimes tax laws have that ef. fect, but if they do it is because the Legislature has unmistakably so enacted. All presumptions are against such an imposition. Tennessee v. Whitworth, 117 U. S. 139, 6 Sup. Ct. 645, 29 L. Ed. 833. The law of taxation is to be construed strictly against the state in favor of the taxpayer as represented by the executor of the estate. Matter of Fayerweather, 143 N. Y. 114, 38 N. E. 278. It seems pretty clear that within the principles of the foregoing and many other cases

which might be cited we ought not to sanction a course which will lead to a tax, measured by the full value of the decedent's stock, in each state upon the conflicting theories that the corporation in that state owns all the property of the consolidated company, unless there is something in the statute or decisions under the statute which compels us so to do. I do not think there is in either place such compelling authority.

No doubt is involved, as it seems to me, about the meaning and application of the statute. The decedent's stock was "property within the state," which had its situs here as being held in the New York corporation, and the transfer of it was taxable here. There can be no dispute about that. The question is simply over the extent and value of his interest as such stockholder, in view of the other incorporation in Massachusetts. I see nothing in the statute which prevents us from paying decent regard to the principles of interstate comity and from adopting a policy which will enable each state fairly to enforce its own laws without oppression to the subject. This result will be attained by regarding the New York corporation as owning the property situate in New York and the Massachusetts corporation as owning that situate in Massachusetts, and each as owning a share of any property situate outside of either state or moving to and fro between the two states, and assessing decedent's stock upon that theory. That is the obvious basis for a valuation if we are to leave any room for the Massachusetts corporation and for a taxation by that state similar in principle to our own without double taxation. Some illustrations may be referred to which by analogy sustain the general principles involved. Where a tax is levied in this state upon the capital or franchises of a corporation organized as this railroad was, the tax is levied upon an equitable basis. Thus by the provisions of section 6 of chapter 917, p. 2403, of the Laws of 1869, under which the Boston & Albany Railroad was organized, the assessment and taxation of its capital stock in this state is to be in the proportion “that the number of miles of its railroad situated in this state bears to the number of miles of its railroad situated in the other state," and under section 182 of the general tax law of the state of New York (Laws 1896, p. 856, C. 908) the franchise tax of a corporation is based upon the amount of capital within the state. Again, assume that for purposes of dissolution or otherwise receivers were to be appointed of the Boston & Albany Railroad, there can be no doubt that the receivers of it as a New York corporation would be ap. pointed by the courts of that state, and the receivers of it as a Massachusetts corporation would be appointed by the courts of that state, and that the courts would hold that

in the discharge of their duties the New York, purtenant, but it holds them for the pereceivers should take possession of and ad cuniary benefit of those persons who hold minister upon the property of the New York the capital stock.

Each share repcorporation within the limits of that state resents a distinct interest in the whole of and would not permit the Massachusetts re the corporate property." In other words, ceivers to come within its confines and inter Judge Gray, in writing the majority opinion, fere with such ownership, and the Massa was discussing the situation of a shareholder chusetts courts would follow a similar policy. in a domestic corporation which, so far as Why should not the state authorities for pur appears, was not incorporated under the poses of this species of taxation and valua laws of another state. Under such circumtion, involved therein, adopt a similar theory stances, of course, the New York corporaof division of property?

tion would be the owner of all the property We are not apprehensive lest, as sug

there was, and the shareholder's interest in gested, New York corporations may take

such corporation would represent his interest out incorporation in other states for the

in all of said property and be fairly and purpose of exempting transfers of their justly taxable upon its full amount and capital stock from taxation under the prin

value. No such situation was presented as ciples of this decision. We do not regard

here arises. There was no second or third our decision as giving encouragement to any

corporation under the laws of another state, such course. It is based upon and limited

which corporation might just as fairly be by the facts as they are here presented, and

said to be the owner of all of the property as there is no question whatever but that the the New York corporation, thus raising the Boston & Albany Railroad, in good faith and

question here presented whether each corfor legitimate reasons, was equally and con

poration should be regarded as owning and temporaneously created both as a New York

holding all of the property there was for the and a Massachusetts corporation. It can no

, more be said that being originally and

whether we should adopt an equitable and

reasonable view, giving credit to each corproperly a New York corporation it sub

poration for the purpose of taxation of sequently and incidently became a Massachusetts one than could be maintained the re

owning some certain portion of the entire verse of such proposition. If in the future

property.

In the Palmer Case again the question a corporation created and organized under the laws of this state, or properly and really

arose over taxing shares of stock held by a

nonresident decedent in a domestic corporato be regarded as a New York corporation,

tion which was not proved or considered to shall see fit either for the purpose suggested,

have been incorporated under the laws of or for any other reason subsequently and incidentally and for ancillary reasons, to take

another state. It was insisted that the

amount of the tax should be reduced by the out incorporation in another state, a case

proportion of property owned by the corporawould arise not falling within this decision.

tion and located in other states, and this But it is said that this court has already made decisions which prevent it from adopt

contention was overruled, and, as it seems

to me, for a perfectly good reason upon the ing such a construction as I have outlined,

facts in that case, and which is not apand reference is made to Matter of Bronson,

plicable to the facts here. As stated, there 150 N. Y. 1, 44 N. E. 707, 34 L. R. A. 238, 55

was a single incorporation under the laws Am. St. Rep. 632, and Matter of Palmer, 183

of this state, and that domestic corporation N. Y. 238, 76 N. E. 16. I do not find any

owned all of the property in whatever state thing in those decisions which, interpreted

situated. Its corporate origin was under as a whole, with reference to the facts there

the laws of this state, and there its corporate being discussed, conflicts with the views

existence was centered. It just as fully and which I have advanced. In the first case

completely owned and managed property the question arose whether a tax might be

situated in the state of Ohio as if it was imposed upon a transfer of a nonresident

situated in the state of New York, and if decedent's residuary estate which “consisted

the property in the foreign state was rein shares of the capital stock and in the duced to money such money would be turned bonds of corporations incorporated under the into its treasury in the state of New York. laws of this state." So far as the discussion Under such circumstances there was nothing relates to the question of taxing the bonds, else that could reasonably be held than that it is immaterial. It was held that the the corporation owned all property wherever shares of capital stock were property which situated, and that the shareholder's interest was taxable; it being said: “The share in such corporation represented and was holders are persons who are interested in based upon such ownership of all the propthe operation of the corporate property and erty. There was no double incorporation franchises, and their shares actually repre and no chance for conflict between an insent undivided interests in the corporate corporation under the laws of this state and enterprise. The corporation has the legal a second one existing under the laws of title to all the properties acquired and ap another state which must either be reconcil

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