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or credits arising from the business done in
to the agent and by him transmitted to the, vides that all bills. receivable, obligations, home office. It does not appear whether or not the notes were returned to New Orleans for the indorsement of the payments of interest. When the notes were paid it was to the agent, to whom they were sent to be delivered back to the makers. At all other times the notes and policies securing them were kept at the home office in New York. The disputed tax was not eo nomine on these notes, but was expressed to be on "credits, money loaned, bills receivable," etc., and its amount was ascertained by computing the sum of the face value of all the notes held by the company at the time of the assessment. The tax was assessed under a law (act 170 of 1898) which provided for a levy of annual taxes on the assessed value of all property situated within the state of Louisiana, and in 7 provided as follows:
"That it is the duty of the tax assessors throughout the state to place upon the assessment list all property subject to taxation, including merchandise or stock in trade on hand at the date of listing within their respective districts or parishes.
And provided further, In assessing mercantile firms the true intent and purpose of this act shall be held to mean the placing of such value upon stock in trade, all cash, whether borrowed or not, money at interest, open accounts, credits, etc., as will represent in their aggregate a fair average on the capital, both cash and credits, employed in the business of the party or parties to be assessed. And this shall apply with equal force to any person or persons representing in this state business interests that may claim domicil elsewhere, the intent and purpose being that no nonresident, either by himself or through any agent, sha'l transact business here without paying to the state a corresponding tax with that exacted of its own citizens; and all bills receivable, obligations, or credits arising from the business done in this state, are hereby declared as assessable within this state and at the business domicil of said nonresident, his agent or representative."
The evident purpose of this law is to lay the burden of taxation equally upon those who do business within the state. It requires that in the valuation for the purposes of taxation of the property of mercantile firms the stock, goods, and credits shall be taken into account, to the end that the average capital employed in the business shall be taxed. This method of assessment is applied impartially to the citizens of the state and to the citizens of other states or countries doing business, personally or through agents, within the state of Louisiana. To accomplish this result the law expressly pro
"There can be doubt that the 7th section of the act of 1898, quoted in the judgment of the district court, announced the policy of the state touching the taxation of credits bills of exchange representing an and amount of the property of nonresidents equivalent or corresponding to said bills or credits which was utilized by them in the prosecution of their business in the state of Louisiana. The evident object of the statute was to do away with the discrimination theretofore existing in favor of nonresidents as against residents, and place them on an equal footing. The statute was not arbitrary, but a legitimate exercise of legislative power and discretion." [115 La. 708, 39 So. 850.]
The tax was levied in obedience to the law of the state, and the only question here is whether there is anything in the Constitution of the United States which forbids it. The answer to that question depends upon whether the property taxed was within the territorial jurisdiction of the state. Property situated without that jurisdiction is beyond the state's taxing power, and the exaction of a tax upon it is in violation of the 14th Amendment to the Constitution. Louisville & J. Ferry Co. v. Kentucky, 188 U. S. 385, 47 L. ed. 513, 23 Sup. Ct. Rep. 463; Delaware L. & W. R. Co. v. Pennsylvania, 198 U. S. 341, 49 L. ed. 1077 25 Sup. Ct. Rep. 669; Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194, 50 L. ed. 150, 26 Sup. Ct. Rep. 36. But personal property may be taxed in its permanent abiding place, although the domicil of the owner is elsewhere. It is usually easy to determine the taxable situs of tangible personal property. But where personal property is consists, as in this intangible, and
case, of credits reduced to the concrete form of promissory notes, the inquiry is complicated not only by the fiction that the domicil of personal property follows that of its owner, but also by the doctrine, based upon historical reasons, that where debts have assumed the form of bonds or other specialties, they are regarded for some purposes as being the property itself, and not the
mere representative of it, and may have a, taxable situs of their own. How far promissory notes are assimilated to specialties in respect of this doctrine need not now be considered.
ertheless, the business of loaning money through the agency in Minnesota was continued during all these years, just as it had been carried on before, and we agree with the circuit court that the fact that the notes were sent to Mrs. Bristol in New York, and the fact of the revocation of the power of attorney, did not exempt these investments from taxation under the statutes, as expounded in the decision to which we have referred."
Referring to the case of New Orleans v.
"There the money, notes, and evidences of credits were in fact in Louisiana, though their owners resided elsewhere. Still, under the circumstances of the case before us, we think, as we have said, that the mere sending of the notes to New York and the revocation of the power of attorney did not take these investments out of the rule.
"Persons are not permitted to avail themselves, for their own benefit, of the laws of a state in the conduct of business within its limits, and then to escape their due contri
this sort, whether taken for convenience or by design."
Accordingly it was held that the tax was not forbidden by the Federal Constitution.
The question in this case is controlled by the authority of the previous decisions of this court. Taxes under this law of Louisiana have been twice considered here, and assessments upon credits arising out of investments in the state have been sustained. A tax on credits evidenced by notes secured by mortgages was sustained where the own-Stempel, the Chief Justice said: er, a nonresident, who had inherited them, left them in Louisiana in the possession of an agent, who collected the principal and interest as they became due. New Orleans v. Stempel, 175 U. S. 309, 44 L. ed. 174, 20 Sup. Ct. Rep. 110. Again, it was held that where | a foreign banking company did business in New Orleans, and through an agent lent money which was evidenced by checks drawn upon the agent, treated as overdrafts and secured by collateral, the checks and collateral remaining in the hands of the agent until the transactions were closed, the cred-bution to the public need, through action of its thus evidenced were taxable in Louisiana. State Assessors v. Comptoir National D'Escompte, 191 U. S. 388, 48 L. ed. 232, 24 Sup. Ct. Rep. 109. In both of these cases the written evidences of the credits were continuously present in the state, and their presence was clearly the dominant factor in the decisions. Here the notes, though present in the state at all times when they were needed, were not continuously present, and during the greater part of their lifetime were absent and at their owner's domicil. Between these two decisions came the case of Bristol v. Washington County, 177 U. S. 133, 44 L. ed. 701, 20 Sup. Ct. Rep. 585. It appeared in that case that a resident of New York was engaged, through an agent, in the business of lending money in Minnesota, secured by mortgages on real property. The notes were made to the order of the non-manent absence, cannot have the effect of resident, though payable in Minnesota, and the mortgages ran to her. The agent made the loans, took and kept the notes and securities, collected the interest, and received payment. The property thus invested continued to be taxed without protest in Min-out of account temporary absences, however nesota until finally the course of business was changed by sending the notes to the domicil of the owner in New York, where they were kept by her. The mortgages were, however, retained by the agent in Minnesota, though his power to discharge them was revoked. The interest was paid to the agent and the notes forwarded to him for collection when due. Taxes levied after this change in the business were in dispute in the case. In delivering the opinion of the court Mr. Chief Justice Fuller said: "Nev
In this case the controlling consideration was the presence in the state of the capital employed in the business of lending money, and the fact that the notes were not continuously present was regarded as immaterial. It is impossible to distinguish the case now before us from the Bristol Case. Here the loans were negotiated, the notes signed, the security taken, the interest collected, and the debts paid within the state. The notes and securities were in Louisiana whenever the business exigencies required them to be there. Their removal with the intent that they shall return whenever needed, their long-continued though not per
releasing them as the representatives of investments in business in the state from its taxing power. The law may well regard the place of their origin, to which they intend to return, as their true home, and leave
long continued. Moreover, neither the fic-
of First Instance of the City of Manila, ordered judgment for plaintiffs in an action to recover a sum alleged to be due for labor and materials furnished under a building contract. Affirmed.
ana, and employed a local agent to conduct | which, reversing the judgment of the Court that business. It was conducted under the laws of the state. The state undertook to tax the capital employed in the business precisely as it taxed the capital of its own citizens in like situation. For the purpose of arriving at the amount of capital actually employed, it caused the credits arising out of the business to be assessed. We think the state had the power to do this, and that the foreigner doing business cannot escape taxation upon his capital by removing temporarily from the state evidences of credits in the form of notes. Under such circumstances they have a taxable situs in the state of their origin.
Statement by Mr. Justice Moody:
The defendants in error, hereinafter called the plaintiffs, brought an action in the court of first instance of the city of Manila, in the Philippine Islands, to recover from the plaintiffs in error, hereinafter called the defendants, the sum of 9,250.62 pesos, alleged to be due on account of labor and materials furnished under a building contract and its
The judgment of the Supreme Court of modifications. The defendants, among other Louisiana is affirmed.
1. Errors alleged to have been committed in an action at law can be reviewed in the Supreme Court of the United States only by writ of error. *
Appeal-review of facts on writ of error.
defenses, set up first, that the labor was performed in a negligent and unworkmanlike manner, which caused the defendants great damages; and, second, that the plaintiffs contracted in writing with the defendants to fill a certain lot of land with earth and sand at a given rate per cubic meter, and had been paid upon their representation
of the amount of earth and sand used in the
filling, $81,497.65, Mexican currency; that the amount of sand and earth used was much less than that represented, and that the plaintiffs had been overpaid $41,197.63, Mexican currency. The defendants sought to recover this overpayment by way of counterclaim. A trial before the judge of the court of first instance resulted in a find
2. Only questions of law apparent on the record can be considered by the Supreme Court of the United States on a writ of error, and there can be no inquiry whether there was error below in dealing with ques-ing that the defendants had been damaged
tions of fact.†
Appeal-review of facts on writ of error.
3. Whether the supreme court of the Philippine Islands, acting under the authority of the P. I. Code of Procedure, § 497, subd. 3, erred in setting aside the conclusion of the court of first instance as being plainly and manifestly against the weight of evidence, is a question which is not open on a writ of error from the Federal Supreme Court.
Appeal-questions reviewable-errors not assigned.
4. Alleged errors of law in the opinion of the court below, which was engaged with a discussion of evidence and the inferences which might properly be drawn from it, will not be considered by the Supreme Court of the United States on a writ of error if they are not contained in the assignment of errors filed with the petition for the writ, where, on the whole, it is clear that the facts found justify the judgment rendered.
Argued March 7, 1907. Decided April 8, Decided April 8, 1907.
through the negligent and unworkmanlike manner of furnishing the labor under the building contract and its modifications, to an amount equal to the sum remaining due under the terms of that contract and that there had been an overpayment on the filling contract, as alleged by the defendants. Accordingly judgment was rendered dismissing the plaintiffs' complaint, and that the defendants recover from the plaintiffs $52,000 Mexican currency. The plaintiffs appealed to the supreme court of the Islands. That court found as a fact substantially that the plaintiffs had fully complied with their contract and were entitled to recover the amount they alleged to be due; that the amount paid by the defendants to the plaintiffs on account of filling was determined by actual measurements made at the time of the filling by defendants' representatives; that there was no fraud or mistake, and that the defendants, therefore, were not entitled to recover anything on account of overpayment on that account. The judg
ment of the court of first instance was reversed, and judgment ordered for the plainN ERROR to the Supreme Court of the tiffs in the sum of $9,250.62, Mexican curPhilippine Islands to review a judgment rency. Thereupon the defendants appealed *Ed. Note. For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 8-15.
I Philippine Islands to review a judgment
†Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 3442-3445.
to this court. The appeal was dismissed by | due to the class of lumber which was selectthis court for want of jurisdiction. The de- ed by the owner. fendants then sued out a writ of error, which was allowed by a justice of the supreme court of the Philippine Islands, and filed with its petition the following assignment of errors:
"1. The supreme court of the Philippine Islands erred in reversing the judgment of the court of first instance for the city of Manila to the effect that the plaintiffs in error were entitled to the sum of $9,250.62, Mexican currency, as damages sustained by reason of the faulty construction of the premises in question.
"2. The supreme court of the Philippine Islands erred in reversing the judgment of the court of first instance for the city of Manila granting judgment in favor of the plaintiff in error in the sum of $52,000, Mexican currency, the amount overpaid by the plaintiffs in error to the defendants in error for the delivery of sand.
"3. The supreme court of the Philippine Islands erred in finding as matters of fact the following:
"(1) That in the construction of the building the contract, plans, and specifications have been complied with, with the exception of a variation to the advantage of the owner, which is that the principal posts rest upon layers of stone, instead of upon the ground, as called for by the plan.
"(2) That, if there has been any variation from the original plan, this was done largely, if not wholly, with the consent of the owner, and, at all events, with that of his agent, the inspecting engineer, and that these changes have been improvements.
"(7) That the plan of the work and the placing of the principal posts were approved by the city engineer and were in conformity with the ordinances.
"(8) That the owner took possession of the house in the month of May, 1902, and has occupied it since that time as a dwelling house.
"By the very fact of accepting the house and occupying it, the defendants acknowledged that it was constructed substantially as required by the contract, plans, and specifications; and this is the law even when the work is not done according to the contract, but accepted.
"4. The supreme court of the Philippine Islands erred in not finding that the evidence in the case was not sufficient to justify the court reversing the judgment of the court of first instance.
"5. The supreme court of the Philippine Islands erred in reversing the judgment of the court of first instance for the city of Manila, and in giving judgment against the plaintiff in error in the sum of $9,250.62, Mexican currency.
"6. The supreme court of the Philippine Islands erred in not confirming the judgment of the court of first instance of the city of Manila in giving judgment in favor of the plaintiff in error in the sum of $52,000, Mexican currency."
Messrs. Henry E. Davis and Charles C. Carlin for plaintiffs in error. Messrs. Aldis B. Browne and Alexander Britton for defendants in error.
Mr. Justice Moody, after making the foregoing statement, delivered the opinion of the court:
"(3) That the house was constructed under a contract and specifications which did little more than to designate the size of the building, the material to be employed, and, with the plan, gave a drawing of the build- The defendants first appealed from the ing, leaving the details necessary almost judgment of the supreme court of the Philcompletely to the direction of the inspect-ippine Islands, which had been rendered ing architect or engineer.
"(4) That the owner intrusted the direction of the work to an inspecting engineer selected by himself, with full authority to represent him, and that the contractor has performed the work solely in accordance with the direction of the said inspecting engineer.
"(5) That although there is some evidence to indicate that a part of the house has settled more than other parts, this is due either to the ground itself or to a defect in plan, or to the directions of the inspecting engineer, and cannot be attributed to a failure on the part of the contractor to comply with the conditions of the contract.
"(6) If there are any cracks in the floor and in the joints in the building, this is
against them and the appeal was dismissed. 200 U. S. 611, 50 L. ed. 619, 26 Sup. Ct. Rep. 753. The reason, so plain that it seemed not to require statement, was that errors alleged to have been committed in an action at law can be reviewed here only by writ of error. This, in the absence of modification by statute, is the rule in respect to all courts whose records are brought here for review. Walker v. Dreville, 12 Wall. 440, 20 L. ed. 429; United States v. Hailey, 118 U. S. 233, 30 L. ed. 173, 6 Sup. Ct. Rep. 1049; Deland v. Platte County, 155 U. S. 221, 39 L. ed. 128, 15 Sup. Ct. Rep. 82; Comstock v. Eagleton, 196 U. S. 99, 49 L. ed. 402, 25 Sup. Ct. Rep. 210.
The defendants, having failed in their appeal, have now brought a writ of error and
ask this court to review the facts to the same extent that they would be reviewed on appeal. But this overlooks the vital distinction between appeals and writs of error which has always been observed by this court, and recognized in legislation. An appeal brings up questions of fact as well as of law, but upon a writ of error only questions of law apparent on the record can be considered, and there can be no inquiry whether there was error in dealing with questions of fact. Wiscart v. Dauchy, 3 Dall. 321, 1 L. ed. 619; Generes v. Campbell, 11 Wall. 193, 20 L. ed. 110; United States v. Dawson, 101 U. S. 569, 25 L. ed. 791; England v. Gebhardt, 112 U. S. 502, 28 L. ed. 811, 5 Sup. Ct. Rep. 287; Martinton v. Fairbanks, 112 U. S. 670, 28 L. ed. 862, 5 Sup. St. Rep. 301; Dower v. Richards, 151 U. S. 658, 38 L. ed. 305, 14 Sup. Ct. Rep. 452 (where the cases are reviewed by Mr. Justice Gray); Elliott v. Toeppner, 187 U. S. 327, 47 L. ed. 200, 23 Sup. Ct. Rep. 133; Rev. Stat. § 1011, U. S. Comp. Stat. 1901, p. 715.
The assignment of errors in the case at bar does not allege any errors of law, but deals exclusively with questions of fact. There are six assignments. The first, second, fifth, and sixth assignments severally allege that the supreme court erred in rendering the judgment which it did and in reversing the judgment of the court of first instance. The third assignment specifically recites that "the supreme court of the Philippine Islands erred in finding as matters of fact the following:" Then come eight specifications of errors in such findings. It is, however, argued by counsel that the fourth assignment of errors in effect alleges an error in law. That assignment is as follows: "The supreme court of the Philippine Islands erred in not finding that the evidence in the case was not sufficient to justify the court reversing the judgment of the court of first instance."
The Philippine Code of Procedure (Public Laws of Philippine Commission, act 190, 1901), prescribes in chapter 22 the practice of the supreme court in reviewing the judgments of courts of first instance. It confines the review to questions of law, with certain exceptions, one of which is as follows:
"If the excepting party filed a motion in the court of first instance for a new trial, upon the ground that the findings of fact were plainly and manifestly against the weight of evidence, and the judge overruled said motion, and due exception was taken to his overruling the same, the supreme court may review the evidence and make such findings upon the facts and render such
final judgment as justice and equity require. But, if the supreme court shall be of the opinion that the exception is frivolous and not made in good faith, it may impose double or treble additional costs upon the excepting party, and may order them to be paid by the counsel presecuting the bill of exceptions, if, in its opinion, justice so requires." § 497, subdiv. 3.
The supreme court, in the case at bar, acted upon the authority conferred by this subdivision. It is said that the supreme court can review the evidence taken in the court of first instance and thereby arrive at a different conclusion of facts from that found by the trial court only in the case that "the findings of fact were plainly and manifestly against the weight of evidence." It is therefore urged that whether the court erred in setting aside the conclusions of the lower court as plainly and manifestly against the weight of evidence is a question of law which may be brought here by writ of error. It was held in De la Rama v. De la Rama, 201 U. S. 303, 50 L. ed. 765, 26 Sup. Ct. Rep. 485, that, upon an appeal, this court will consider whether a reversal by the supreme court of the findings of the court of first instance was justified on the ground that the findings below were plainly and manifestly against the weight of evidence, and, upon being satisfied that the action of the supreme court was not warranted, on that ground would reverse it. But this case was one of appeal, and the vital distinction between an appeal and a writ of error has already been shown. The principle acted upon in that case is not applicable to writs of error. The fourth assignment of error, therefore, raises no question of law.
The case would stop here were it not for the fact that the defendants in their brief and in the oral argument in their behalf go beyond the assignment of errors and set up three alleged errors of law not contained in them.
It is said that the court below erred:
"(1) In holding as a matter of law that the fact of taking possession of said dwelling house was an acknowledgment by the plaintiffs in error that it was constructed substantially as required by the said contract.
"(2) In holding as a matter of law that the plaintiffs in error were not entitled to recover their overpayments for earth and sand because no mutual mistake was shown in the premises.
"(3) In rendering judgment for a sum in. Mexican currency instead of in Philippine pesos."
It is provided in the act giving this court