Buck. There was no return for taxation of said notes, or of the investments represented by them, either in Ohio or New York during the lifetime of the decedent."

Taking this to be a finding of fact by the supreme court of the state, it is plain that the action of the decedent in sending the Ohio notes into the state of Indiana for the purpose stated (whether successful or not) was improper and unjustifiable. The record does show, however, that the executors subsequently paid the Ohio authorities over $40,000 for taxes on the moneys invested in Ohio.

For the purpose of taxation, however, it | vested the right to such possession in said has long been held that personal property may be separated from its owner, and he may be taxed on its account at the place where the property is, although it is not the place of his own domicil, and even if he is not a citizen or resident of the state which imposes the tax. Pullman's Palace Car Co. Pennsylvania, 141 U. S. 18, 22, 35 L. ed. 613, 616, 3 Inters. Com. Rep. 595, 11 Sup. Ct. Rep. 876; Tappan v. Merchants' Nat. Bank, 19 Wall. 490, 22 L. ed. 189; People ex rel. Hoyt v. Tax & A. Comrs. 23 N. Y. 224, 240. The same rule applies to intangible property. Generally speaking, intangible property in the nature of a debt may be regarded, for the purposes of taxation, as situated at the domicil of the creditor and within the jurisdiction of the state where he has such domicil. It is property within that state. Thus it has been held that a debt owned by a citizen of one state against a citizen of another state and evidenced by the bond of the debtor, secured by a deed of trust or mortgage upon real estate situated in the state where the debtor resides, is properly taxed by the state of the residence of the creditor, if the statute of that state so provides, and such tax violates no provision of the Federal Constitution. Kirtland v. Hotchkiss, 100 U. S. 491, 498, 25 L. ed. 558, 562.

But an attempt to escape proper taxation in Ohio does not confer jurisdiction to tax property asserted to be in Indiana which really lies outside and beyond the jurisdiction of that state. Jurisdiction of the state of Indiana to tax is not conferred or strengthened by reason of the motive which may have prompted the decedent to send into the state of Indiana these evidences of debts owing him by residents of Ohio. The question still remains, Was there any property within the jurisdiction of the state of Indiana, so as to permit that state to tax it, simply because of the presence of the Ohio notes in that state? It was not the value of the paper as a tangible thing, on which these promises to pay the debts existing in Ohio were written, that was taxed by that state. The property really taxed was the debt itself, as each separate note was taxed at the full amount of the debt named therein or due thereon. And jurisdiction over these debts for the purpose of taxation was asserted and exercised solely by reason of the physical presence in Indiana of the notes themselves, although they were only written evidence of the existence of the debts which were in fact thereby taxed.

Rejecting the fiction of law in regard to the situs of personal property, including therein choses in action, the courts of Indiana have asserted jurisdiction by reason of the statute of that state over these Ohio notes for the purpose of taxation in Indiana, founded upon the simple fact that such notes were placed in the latter state by the Ohio agent of the decedent under the circumstances above set forth. The supreme court of Indiana refused to accept the testimony of the agents that the Ohio notes. were sent to Lafayette merely for safekeeping, and for clerical convenience, and said that "the court below was authorized to make the opposite deduction from the uniform course of the business in respect to the keeping of said notes and mortgages and from the evidence that decedent gave the direction which established the practice that was pursued in that particular. More than that, the evidence clearly warranted the conclusion that Buck was vested with a control of said notes and securities for the purpose of enabling decedent to escape taxation in Ohio. We must, therefore, conclude, in support of the general finding, that the court below found that in conducting the business of the Ohio agency the decedent separated from said business the pos- Under such rule, the debts here in quessession of said notes and mortgages and 'tion were not property within the state of

A distinction has been sometimes taken between bonds and other specialty debts belonging to the deceased, on the one hand, and simple contract debts on the other, for the purpose of probate jurisdiction, and the probate court where the bonds are found has been held to have jurisdiction to grant probate, while, in the other class of debts (including promissory notes), jurisdiction has attached to the probate court where the debtor resided at the death of the creditor. 1 Wms. Exrs. 6th Am. from 7th English ed., bottom paging 288, 290, note [h]; Wyman v. Halstead (Wyman v. United States) 109 U. S. 654, 27 L. ed. 1068, 3 Sup. Ct. Rep. 417. See also Beers v. Shannon, 73 N. Y. 292, 299; Owen v. Miller, 10 Ohio St. 136, 75 Am. Dec. 502.

Indiana, nor were the promissory notes | in New York, the domicil of the company) themselves, which were only evidence of except when they became due was regarded such debts. The rule giving jurisdiction as unimportant. The law, it was said, rewhere the specialty may be found has no garded the place of their origin as their application to a promissory note. Assum-true home, to which they would return to ing such a rule, the case here is not covered be paid, and their temporary absence, howby it. ever long continued, was left out of account.

The prior cases of New Orleans v. Stem-. pel, 175 U. S. 309, 44 L. ed. 174, 20 Sup. Ct. Rep. 110, and State Assessors v. Comptoir National D'Escompte, 191 U. S. 388, 48 L. ed. 232, 24 Sup. Ct. Rep. 109, were also cited. In the first there was a tax on credits, evidenced by notes (secured by mortgages on real estate in New Orleans) which the owner, a nonresident, who had inherited them, left in Louisiana in the possession of an agent, who collected the principal and interest as they became due. The capital of the owner was thus invested in the state, and was thereby subject to taxation there, and the notes did not alter the nature of the debt, but were merely evidence of it. In the latter case 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 credits thus evidenced were held taxable in Louisiana. The corporation was held to be doing business and had capital employed in the city of New Orleans, to the extent of the assessment made upon it therein.

Questions of the validity of state taxation with reference to the Federal Constitution have become quite frequent in this court within the last few years. The case of Metropolitan L. Ins. Co. v. New Orleans, 205 U. S. 395, 51 L. ed. 853, 27 Sup. Ct. Rep. 499, is the latest. The question there was in relation to the validity of certain taxes assessed in the city of New Orleans against the Metropolitan Life Insurance Company by reason of the company doing business in lending money to the holders of its policies in New Orleans. The domicil of the company was in the city of New York, and the evidences of the credits, in the form of notes, were kept most of the time in New York, being sent to New Orleans when due. The tax was, under the laws of the state of Louisiana, levied on the "credits, money loaned, bills receivable," etc., of the plaintiff in error, and its amount was ascertained by computing the sum of the face value of all the notes held by the company in New Orleans at the time of the assessment. The assessment was made under an act which provided that "bills receivable, obligations, or credits arising from the business done in this state," shall be assessable at the business domicil of the nonresident, the assessment being made in such a way under the statute as would "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." The tax was sustained because, as is stated in the opinion of the court, which was delivered by Mr. Justice Moody, "the insurance company chose to enter into the business of lending money within the state of Louisiana, and employed a local agent to conduct that business. It was conducted In Savings & L. Soc. v. Multnomah under the laws of the state. The state County, 169 U. S. 421, 42 L. ed. 803, 18 Sup. undertook to tax the capital employed in Ct. Rep. 392, the assessment was upon the the business precisely as it taxed the capi- real estate mortgaged, the interest of the tal of its own citizens in like situation. mortgagee therein being taxed to him and For the purpose of arriving at the amount the rest to the mortgagor, and it was held of capital actually employed, it caused the by this court that the fact that the mortcredits arising out of the business to be as-gage was owned by a citizen of another sessed. We think the state had the power state, and in his possession outside of the to do this, and that the foreigner doing state of Oregon, where the real estate was business cannot escape taxation upon his situated, did not violate the 14th Amendcapital by removing temporarily from the ment. It was stated that "the state may state evidences of credits in the form of tax real estate mortgaged, as it may all notes. Under such circumstances, they other property within its jurisdiction, at its have a taxable situs in the state of their full value. It may do this, either by taxing origin." The temporary absence of the notes the whole to the mortgagor, or by taxing given for the loans from the state (being' to the mortgagee the interest therein rep

In Bristol v. Washington County, 177 U. S. 133, 44 L. ed. 701, 20 Sup. Ct. Rep. 585, the assessment was upheld because it appeared that the person assessed was doing business in Minnesota through an agent, in lending money in that state, which was secured by mortgages on real property therein. The amount of money thus invested in that state was held to be properly taxable therein.

resented by the mortgage, and to the mort- | forced it would not be to the courts of Ingagor the remaining interest in the land. And it may, for the purpose of taxation, either treat the mortgage debt as personal property, to be taxed like other choses in action, to the creditor at his domicil, or treat the mortgagee's interest in the land as real estate, to be taxed to him, like other real property, at its situs." Under the statute of Oregon the assessment was made against the mortgagee upon his interest in the land as real estate.

U. S. 309, 319, 320, 44 L. ed. 174, 180, 20 Sup. | power of attorney under which the agent Ct. Rep. 110; Blackstone v. Miller, 188 U. S. 189, 206, 47 L. ed. 439, 445, 23 Sup. Ct. Rep. 277). In the Stempel Case, supra, the notes, as we have said, represented the capital of the owner invested in the state, and the capital was taxed, although the owner was a nonresident.

held the "Ohio notes" not only authorized him to enter satisfaction of them when paid, but gave him complete control and dominion over them, with power of sale. And while it does not clearly appear that the proceeds of the notes in question were reinvested by the agent in Indiana, it does appear that after 1886 large sums of money were sent from Cincinnati to Lafayette, and were invested by Nash's agent in Indiana. Furthermore, in the opinion it is said that the executors, subsequently to the death of Nash, paid over $40,000 of taxes on money invested in Ohio. It does appear that after the death of Nash, under the Ohio law the

Cases arising under collateral inheritance tax or succession tax acts have been cited as affording foundation for the right to tax as herein asserted. The foundation upon which such acts rest is different from that which exists where the assessment is levied upon property. The succession or inheritance tax is not a tax on property, as has been frequently held by this court (Knowl-auditor of Hamilton county instituted a ton v. Moore, 178 U. S. 41, 44 L. ed. 969, 20 Sup. Ct. Rep. 747, and Blackstone v. Miller, 188 U. S. 189, 47 L. ed. 439, 23 Sup. Ct. Rep. 277), and therefore the decisions arising under such inheritance tax cases are not in point.

Our decision in this case has no tendency to aid the owner of taxable property in any effort to avoid or evade proper and legitimate taxation. The presence The presence of the notes in Indiana formed no bar to the right, if it otherwise existed, of taxing the debts evidenced by the notes in Ohio. It does, however, tend to prevent the taxation in one state of property in the shape of debts not existing there, and which, if so taxed, would make double taxation almost sure, which is certainly not to be desired, and ought, wherever possible, to be prevented.

Mr. Justice Day, dissenting:

I am unable to concur in the opinion and judgment of the court in this case, and believe that its importance and far-reaching effect warrant a statement of the grounds upon which I differ.

Before stating the view which it seems to me should be controlling, I believe that the statement of facts, as outlined by the learned Justice speaking for the court, should be somewhat amplified, with a view to a more complete showing of the case.

The office in Lafayette, Indiana, was the office of Nash, for which he paid the rent. The safes in which the notes were kept in this office were the safes of Nash, and the

proceeding for the collection of five years (of the thirteen here involved) of back taxes upon some of the notes representing the Ohio investments, and, rather than litigate, a settlement was made by the executors for this five years' claim in the sum of $40,000. Whether that was for the notes here in question the record does not disclose. As the Ohio agent testified, only a part of the Ohio notes were sent to Indiana, and others in large amounts were kept in Ohio. We know of no statute in Ohio which would tax the notes permanently kept in Indiana, and none is pointed out. The supreme court of Indiana in this case reached the conclusion that these particular notes were not taxable in Ohio. Of course, the settlement of the claim could not affect the legal proposition here involved, but for accuracy of statement it must not be regarded that equitably the claim for taxes upon these notes has been satisfied. On the contrary; this record discloses that, by the scheme adopted, more than three quarters of a million of dollars in capital invested in notes and mortgages successfully evaded taxes during Nash's lifetime in New York, where he was domiciled, and in Ohio and Indiana, where his agents were loaning his money for him, and where his notes and mortgages, the results of such loans, were held for him.

Accepting the decision of the supreme court of the state that a statute of the state has undertaken to tax these notes, it is now held that the Constitution of the United States prevents such taxation of notes and mortgages held under the protection and within the power of the state by the agent of a nonresident owner, although such agent holds the securities in an office belonging to the owner, in a safe provided by him, with a power of attorney which gives him full dominion over them, and, for the convenience of the owner, keeps a book in which transactions concerning them are recorded at the instance of the owner, and sends them out for collection. These notes

were sent beyond the borders of the state | states referred to in these authorities as of Indiana only for collection, or for the few days when they were supposed to be liable for taxation, and, when such danger was thought to be past, returned to the agent in Indiana.

Stockton v. Stanbrough, 3 La. Ann. 390. Now, if property can have such a situs within the state as to be subject to seizure and sale on execution, it would seem to follow It would unnecessarily extend this dis- that the state has power to establish a like sent to analyze these cases. Brief reference situs within the state for purposes of taxto some of them, in my judgment, shows ation. It has also been held that a note that the principles therein declared, when may be made the subject of seizure and deextended to this case, would warrant the livery in a replevin suit. Graff v. Shannon, state, if it so chose in exerting its taxing 7 Iowa, 508; Smith v. Eals, 81 Iowa, 235, power, to reach notes and mortgages held 25 Am. St. Rep. 486, 46 N. W. 1110; Pritchwithin its jurisdiction under the circum-ard v. Norwood, 155 Mass. 539, 30 N. E. stances which we have detailed.