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to the agent and by him transmitted to the , vides that all bills. receivable, obligations, home office. It does not appear whether or or credits arising from the business done in not the notes were returned to New Orleans this state shall be assessable at the business for the indorsement of the payments of in- domicil of the resident. Thus it is clear terest. When the notes were paid it was that the measure of the taxation designed to the agent, to whom they were sent to be by the law is the fair average of the capital delivered back to the makers. At all other employed in the business.

business. Cash

Cash and times the notes and policies securing them credits and bills receivable are to be taken were kept at the home office in New York. into account merely because they represent The disputed tax was not eo nomine on the capital, and are not to be omitted bethese notes, but was expressed to be on cause their owner happens to have a domicil "credits, money loaned, bills receivable," etc., in another state. The law was so construed and its amount was ascertained by comput- by the supreme court of Louisiana, where, ing the sum of the face value of all the in sustaining the assessment, it was said: notes held by the company at the time of “There can be doubt that the 7th section the assessment. The tax was assessed un- of the act of 1898, quoted in the judgment der a law (act 170 of 1898) which provided of the district court, announced the policy for a levy of annual taxes on the assessed of the state touching the taxation of credits value of all property situated within the and

and bills of exchange representing an state of Louisiana, and in 7 provided as amount of the property of nonresidents follows:

equivalent or corresponding to said bills or “That it is the duty of the tax assessors credits which was utilized by them in the throughout the state to place upon the as- prosecution of their business in the state of sessment list all property subject to taxa- Louisiana. The evident object of the stattion, including merchandise or stock in ute was to do away with the discrimination trade on hand at the date of listing within theretofore existing in favor of nonresidents their respective districts or parishes.

as against residents, and place them on an And provided further, In assessing mercan equal footing. The statute was not arbitile firms the true intent and purpose of this, trary, but a legitimate exercise of legisact shall be held to mean the placing of such lative power and discretion.” [115 La. 708, value upon stock in trade, all cash, whether 39 So. 850.] borrowed or not, money at interest, open The tax was levied in obedience to the accounts, credits, etc., as will represent in law of the state, and the only question here their aggregate a fair average on the capi- | is whether there is anything in the Constital, both cash and credits, employed in the tution of the United States which forbids it. business of the party or parties to be as. The answer to that question depends upon sessed. And this shall apply with equal whether the property taxed was within the force to any person or persons representing territorial jurisdiction of the state. Propin this state business interests that may erty situated without that jurisdiction is claim domicil elsewhere, the intent and pur- beyond the state's taxing power, and the ex. pose being that no nonresident, either by action of a tax upon it is in violation of himself or through any agent, sha'l transact the 14th Amendment to the Constitution. business here without paying to the state a Louisville & J. Ferry Co. v. Kentucky, 188 corresponding tax with that exacted of its U. S. 385, 47 L. ed. 513, 23 Sup. Ct. Rep. own citizens; and all bills receivable, obliga- 463; Delaware L. & W. R. Co. v. Pennsyltions, or credits arising from the business vania, 198 U. S. 341, 49 L. ed. 1077 25 Sup. done in this state, are hereby declared as as- Ct. Rep. 669; Union Refrigerator Transit sessable within this state and at the busi-Co. v. Kentucky, 199 U. S. 194, 50 L. ed. ness domicil of said nonresident, his agent 150, 26 Sup. Ct. Rep. 36. But personal propor representative.”

erty may be taxed in its permanent abiding The evident purpose of this law is to lay place, although the domicil of the owner is the burden of taxation equally upon those elsewhere. It is usually easy to determine who do business within the state. It re- the taxable situs of tangible personal propquires that in the valuation for the purposes erty. But where personal property is of taxation of the property of mercantile intangible, and consists, as in this firms the stock, goods, and credits shall be case, of credits reduced to the concrete form taken into account, to the end that the av- of promissory notes, the inquiry is complierage capital employed in the business shall cated not only by the fiction that the domi. be taxed. This method of assessnient is apcil of personal property follows that of its plied impartially to the citizens of the state owner, but also by the doctrine, based upon and to the citizens of other states or coun- historical reasons, that where debts have astries doing business, personally or through sumed the form of bonds or other specialagents, within the state of Louisiana. To ties, they are regarded for some purposes accomplish this result the law expressly pro- as being the property itself, and not the

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mere representative of it, and may have a , ertheless, the business of loaning money taxable situs of their own. How far prom through the agency in Minnesota was conissory notes are assimilated to specialties tinued during all these years, just as it had in respect of this doctrine need not now be been carried on before, and we agree with considered.

the circuit court that the fact that the notes The question in this case is controlled by were sent to Mrs. Bristol in New York, and the authority of the previous decisions of the fact of the revocation of the power of this court. Taxes under this law of Louis- attorney, did not exempt these investments iana have been twice considered here, and from taxation under the statutes, as, exassessments upon credits arising out of in- pounded in the decision to which we have vestments in the state have been sustained. referred." A tax on credits evidenced by notes secured Referring to the case of New Orleans v. by mortgages was sustained where the own. Stempel, the Chief Justice said: er, a nonresident, who had inherited them,

“There the money, notes, and evidences of left them in Louisiana in the possession of credits were in fact in Louisiana, though an agent, who collected the principal and in their owners resided elsewhere. Still, under terest as they became due. New Orleans v. the circumstances of the case before us, we Stempel, 175 U. S. 309, 44 L. ed. 174, 20 Sup. think, as we have said, that the mere sendCt. Rep. 110. Again, it was held that where ing of the notes to New York and the revoa foreign banking company did business in cation of the power of attorney did not take New Orleans, and through an agent lent these investments out of the rule. money which was evidenced by checks drawn

“Persons are not permitted to avail themupon the agent, treated as overdrafts and selves, for their own benefit, of the laws of secured by collateral, the checks and col- a state in the conduct of business within its lateral remaining in the hands of the agent limits, and then to escape their due contriuntil the transactions were closed, the cred-bution to the public need, through action of its thus evidenced were taxable in Louisi- this sort, whether taken for convenience or ana. State Assessors v. Comptoir National by design.” D’Escompte, 191 U. S. 388, 48 L. ed. 232, 24 Accordingly it was held that the tax was Sup. Ct. Rep. 109. In both of these cases not forbidden by the Federal Constitution. the written evidences of the credits were In this case the controlling consideration continuously present in the state, and their was the presence in the state of the capital presence was clearly the dominant factor in employed in the business of lending money, the decisions. Here the notes, though pres- and the fact that the notes were not conent in the state at all times when they were tinuously present was regarded as immaneeded, were not continuously present, and terial. It is impossible to distinguish the during the greater part of their lifetime case now before us from the Bristol Case. were absent and at their owner's domicil. Here the loans were negotiated, the notes Between these two decisions came the case of signed, the security taken, the interest colBristol v. Washington County, 177 U. S. lected, and the debts paid within the state. 133, 44 L. ed. 701, 20 Sup. Ct. Rep. 585. It The notes and securities were in Louisiana appeared in that case that a resident of New whenever the business exigencies required York was engaged, through an agent, in the them to be there. Their removal with the business of lending money in Minnesota, se intent that they shall return whenever needcured by mortgages on real property. The ed, their long-continued though not pernotes were made to the order of the non- manent absence, cannot have the effect of resident, though payable in Minnesota, and releasing them as the representatives of inthe mortgages ran to her. The agent made vestments in business in the state from its the loans, took and kept the notes and se- taxing power.

taxing power. The law may well regard curities, collected the interest, and received the place of their origin, to which they inpayment. The property thus invested con- tend to return, as their true home, and leave tinued to be taxed without protest in Min- out of account temporary absences, however nesota until finally the course of business long continued. Moreover, neither the ficwas changed by sending the notes to the tion that personal property follows the domdomicil of the owner in New York, where icil of its owner, nor the doctrine that credthey were kept by her. The mortgages were, its evidenced by bonds or notes may have however, retained by the agent in Minne- the situs of the latter, can be allowed to obsota, though his power to discharge them scure the truth. Blackstone v. Miller, 188 was revoked. The interest was paid to the U. S. 189, 47 L. ed. 439, 23 Sup. Ct. Rep. agent and the notes forwarded to him for 277. We are not dealing here merely with collection when due. Taxes levied after this a single credit or a series of separate credchange in the business were in dispute in its, but with a business. The insurance the case. In delivering the opinion of the company chose to enter into the business court Mr. Chief Justice Fuller said: “Nev. l of lending money within the state of Louisi


ana, and employed a local agent to conduct which, reversing the judgment of the Court that business. It was conducted under the of First Instance of the City of Manila, or. laws of the state. The state undertook to dered judgment for plaintiffs in an action tax the capital employed in the business to recover a sum alleged to be due for labor precisely as it taxed the capital of its own and materials furnished under a building citizens in like situation. For the purpose contract.

contract. Affirmed. of arriving at the amount of capital actually employed, it caused the credits arising out Statement by Mr. Justice Moody: of the business to be assessed. We think The defendants in error, hereinafter called the state had the power to do this, and that the plaintiffs, brought an action in the court the foreigner doing business cannot escape of first instance of the city of Manila, in taxation upon his capital by removing tem- the Philippine Islands, to recover from the porarily from the state evidences of credits plaintiffs in error, hereinafter called the dein the form of notes. Under such circum- fendants, the sum of 9,250.62 pesos, alleged stances they have a taxable situs in the to be due on account of labor and materials state of their origin.

furnished under a building contract and its The judgment of the Supreme Court of modifications. The defendants, ainong other Louisiana is affirmed.

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 plainBEHN, MEYER, & CO., Plffs. in Err.,

tiffs contracted in writing with the defend

ants to fill a certain lot of land with earth CAMPBELL & GO TAUCO.

and sand at a given rate per cubic meter, Appeal—distinction between appeal and writ and had been paid upon their representation of error.

of the amount of earth and sand used in the 1. Errors alleged to have been commit filling, $81,497.65, Mexican currency; that ted in an action at law can be reviewed in the amount of sand and earth used was the Supreme Court of the United States much less than that represented, and that only by writ of error. *

the plaintiffs had been overpaid $41,197.63, Appeal-review of facts on writ of error. Mexican currency. The defendants sought

2. Only questions of law apparent on to recover this overpayment by way of the record can be considered by the Supreme counterclaim. A trial before the judge of Court of the United States on a writ of the court of first instance resulted in a finderror, 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.t

through the negligent and unworkmanlike Appeal-review of facts on writ of error.

manner of furnishing the labor under the 3. Whether the supreme court of the building contract and its modifications, to Philippine Islands, acting under the authori- an amount equal to the sum remaining due ty of the P. I. Code of Procedure, $ 497, under the terms of that contract and that subd. 3, erred in setting aside the conclu- there had been an overpayment on the fillsion of the court of first instance as being ing contract, as alleged by the defendants. plainly and manifestly against the weight of Accordingly judgment was rendered dismissevidence, is a question which is not open on ing the plaintiffs' complaint, and that the a writ of error from the Federal Supreme defendants recover from the plaintiffs $52,Court.

000 Mexican currency. The plaintiffs apAppeal-questions reviewable-errors not assigned.

pealed to the supreme court of the Islands. 4. Alleged errors of law in the opinion That court found as a fact substantially that of the court below, which was engaged with the plaintiffs had fully complied with their a discussion of evidence and the inferences contract and were entitled to recover the which might properly be drawn from it, amount they alleged to be due; that the will not be considered by the Supreme Court amount paid by the defendants to the plainof the United States on a writ of error if they are not contained in the assignment of

tiffs on account of filling was determined errors filed with the petition for the writ, | by actual measurements made at the time where, on the whole, it is clear that the of the filling by defendants' representatives; facts found justify the judgment rendered that there was no fraud or mistake, and

that the defendants, therefore, were not en[No. 227.]

titled to recover anything on account of Argued March 7, 1907. Decided April 8, overpayment on that account. The judg1907.

ment of the court of first instance was re

versed, 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. fEd. 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 deed by the owner. fendants then sued out a writ of error, “(7) That the plan of the work and the which was allowed by a justice of the su. placing of the principal posts were approved preme court of the Philippine Islands, and by the city engineer and were in conformity filed with its petition the following assign with the ordinances. ment of errors:

“(8) That the owner took possession of “l. The supreme court of the Philippine the house in the month of May, 1902, and Islands erred in reversing the judgment of has occupied it since that time as a dwelling the court of first instance for the city of house. Manila to the effect that the plaintiffs in er- "By the very fact of accepting the house ror were entitled to the sum of $9,250.62, and occupying it, the defendants acknowl. Mexican currency, as damages sustained by edged that it was constructed substantially reason of the faulty construction of the as required by the contract, plans, and specipremises in question.

fications; and this is the law even when the “2. The supreme court of the Philippine work is not done according to the contract, Islands erred in reversing the judgment of but accepted. the court of first instance for the city of 4. The supreme court of the Philippine Manila granting judgment in favor of the Islands erred in not finding that the evi. plaintiff in error in the sum of $52,000, Mex. dence in the case was not sufficient to justi. ican currency, the amount overpaid by the fy the court reversing the judgment of the plaintiffs in error to the defendants in error court of first instance. for the delivery of sand.

"5. The supreme court of the Philippine “3. The supreme court of the Philippine Islands erred in reversing the judgment of Islands erred in finding as matters of fact the court of first instance for the city of the following:

Manila, and in giving judgment against the “(1) That in the construction of the plaintiff in error in the sum of $9,250.62, building the contract, plans, and specifica Mexican currency. tions have been complied with, with the ex- “6. The supreme court of the Philippine ception of a variation to the advantage of Islands erred in not confirming the judgment the owner, which is that the principal posts of the court of first instance of the city of rest upon layers of stone, instead of upon Manila in giving judgment in favor of the the ground, as called for by the plan. plaintiff in error in the sum of $52,000, Mex

(2) That, if there has been any varia- ican currency." tion from the original plan, this was done largely, if not wholly, with the consent of Messrs. Henry E. Davis and Charles C. the owner, and, at all events, wito that of Carlin for plaintiffs in error. his agent, the inspecting engineer, and that Messrs. Aldis B. Browne and Alexander these changes have been improvements. Britton for defendants in error.

(3) That the house was constructed under a contract and specifications which did Mr. Justice Moody, after making the forelittle more than to designate the size of the going statement, delivered the opinion of building, the material to be employed, and, the court: 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.

against them and the appeal was dismissed. “(4) That the owner intrusted the direc- 200 U. S. 611, 50 L. ed. 619, 26 Sup. Ct. Rep. tion of the work to an inspecting engineer 753. The reason, so plain that it seemed selected by himself, with full authority to not to require statement, was that errors alrepresent him, and that the contractor has leged to have been committed in an action performed the work solely in accordance at law can be reviewed here only by writ of with the direction of the said inspecting en

error. This, in the absence of modification gineer.

by statute, is the rule in respect to all “(5) That although there is some evidence courts whose records are brought here for to indicate that a part of the house has set-review. Walker v. Dreville, 12 Wall. 440, tled more than other parts, this is due ei. 20 L, ed. 429; United States v. Hailey, 118 ther to the ground itself or to a defect in U. S. 233, 30 L. ed. 173, 6 Sup. Ct. Rep. plan, or to the directions of the inspecting 1049; Deland v. Platte County, 155 U. S. engineer, and cannot be attributed to a fail. 221, 39 L. ed. 128, 15 Sup. Ct. Rep. 82; ure on the part of the contractor to comply Comstock v. Eagleton, 196 U. S. 99, 49 L. ed. with the conditions of the contract.

402, 25 Sup. Ct. Rep. 210. “(6) If there are any cracks in the floor The defendants, having failed in their apand in the joints in the building, this is ' peal, have now brought a writ of error and p. 715.

ask this court to review the facts to the final judgment as justice and equity resame extent that they would be reviewed quire. But, if the supreme court shall be of on appeal. But this overlooks the vital the opinion that the exception is frivolous distinction between appeals and writs of er- and not made in good faith, it may impose ror which has always been observed by this double or treble additional costs upon the court, and recognized in legislation. An ap- excepting party, and may order them to be peal brings up questions of fact as well as paid by the counsel presecuting the bill of of law, but upon a writ of error only ques. exceptions, if, in its opinion, justice so retions of law apparent on the record can be quires.” § 497, subdiv. 3. considered, and there can be no inquiry The supreme court, in the case at bar, whether there was error in dealing with acted upon the authority conferred by this questions of fact. Wiscart v. Dauchy, 3 subdivision. It is said that the supreme Dall. 321, 1 L. ed. 619; Generes v. Campbell, court can review the evidence taken in the 11 Wall. 193, 20 L. ed. 110; United States court of first instance and thereby arrive v. Dawson, 101 U. S. 569, 25 L. ed. 791; Eng. at a different conclusion of facts from that land v. Gebhardt, 112 U. S. 502, 28 L. ed. found by the trial court only in the case 811, 5 Sup. Ct. Rep. 287; Martinton v. Fair- that “the findings of fact were plainly and banks, 112 U. S. 670, 28 L. ed. 862, 5 Sup. manifestly against the weight of evidence.” St. Rep. 301; Dower v. Richards, 151 U. S. It is therefore urged that whether the court 658, 38 L. ed. 305, 14 Sup. Ct. Rep. 452 erred in setting aside the conclusions of the (where the cases are reviewed by Mr. Jus- lower court as plainly and manifestly tice Gray); Elliott v. Toeppner, 187 U. S. against the weight of evidence is a question 327, 47 L. ed. 200, 23 Sup. Ct. Rep. 133; of law which may be brought here by writ Rev. Stat. § 1011, U. S. Comp. Stat. 1901, of error. It was held in De la Rama v. De

la Rama, 201 U. S. 303, 50 L. ed. 765, 26 The assignment of errors in the case at Sup. Ct. Rep. 485, that, upon an appeal, this bar does not allege any errors of law, but court will consider whether a reversal by deals exclusively with questions of fact. the supreme court of the findings of the There are six assignments. The first, sec- court of first instance was justified on the ond, fifth, and sixth assignments severally ground that the findings below were plainly allege that the supreme court erred in ren- and manifestly against the weight of evidering the judgment which it did and in dence, and, upon being satisfied that the acreversing the judgment of the court of first tion of the supreme court was not warrantinstance. The third assignment specifically ed, on that ground would reverse it. But recites that "the supreme court of the Phil. this case was one of appeal, and the vital ippine Islands erred in finding as matters distinction between an appeal and a writ of of fact the following:" Then come eight error has already been shown. The princispecifications of errors in such findings. It ple acted upon in that case is not applicais, however, argued by counsel that the ble to writs of error. The fourth assignfourth assignment of errors in effect alleges ment of error, therefore, raises no question an error in law. That assignment is as fol- of law. lows: "The supreme court of the Philip- The case would stop here were it not for pine Islands erred in not finding that the the fact that the defendants in their brief evidence in the case was not sufficient to and in the oral argument in their behalf justify the court reversing the judgment of go beyond the assignment of errors and set the court of first instance."

up three alleged errors of law not contained The Philippine Code of Procedure (Public in them. Laws of Philippine Commission, act 190, It is said that the court below erred: 1901), prescribes in chapter 22 thn practice (1) In holding as a matter of law that of the supreme court in reviewing the judg. the fact of taking possession of said dwell. ments of courts of first instance. It con- ing house was an acknowledgment by the fines the review to questions of law, with plaintiffs in error that it was constructed certain exceptions, one of which is as fol. substantially as required by the said conlows:

tract. "If the excepting party filed a motion in “(2) In holding as a matter of law that the court of first instance for a new trial, the plaintiffs in error were not entitled to upon the ground that the findings of fact recover their overpayments for earth and were plainly and manifestly against the sand because no mutual mistake was shown weight of evidence, and the judge overruled in the premises. said motion, and due exception was taken "(3) In rendering judgment for a sum in. to his overruling the same, the supreme Mexican currency instead of in Philippine court may review the evidence and make pesos." such findings upon the facts and render such It is provided in the act giving this court

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