City Council v. Dunbar , 50 Ga. 387 ( 1873 )

McCay, Judge.

1. The case of Bridges vs. The Mayor and Council of Griffin, 33 Georgia, 113, is clearly a decision that the locality of a chose in action, such as bonds, promissory notes, etc., is at the place of the residence of the debtor, and if that decision be now the law the Judge was right in granting the injunction as to the Central and Macon bonds. But we think the legislation of the State, since the date of this decision, clearly indicates that a different rule is now to be adopted. Under our tax laws, as they then stood, though choses in action were taxed, there was nothing in the tax Acts to indicate where the locality of choses in action was. It was, therefore, a question for judicial decision upon general principles. But by section 798 of’the Code it is declared that “bonds, notes and other obligations for money on persons in other States, or bonds of the United States or of other States, or bonds of corporations of other States, and shipping, are subjects of return and taxation in this State.” This can only be on the idea that the locality of such property is with the owner of it. It cannot be supposed that the Legislature intended to tax choses in action held by residents in this State on residents of another State, and at the same time tax, as it does, “ all the property of non-residents which is in this State,” including bonds and other obligations for money; section 800. This would be taxing property here and property not here; taxing debts against the creditor and the debtor, which is absurd and oppressive. In our judgment this is a clear indication and declaration of the legislative will that the property in bonds and notes, or other obligations to pay money, is located at the place of the residence of the owner of them, and that at least since the 1st of January, 1863, when the Code went into effect, such is the law of this State for purposes of taxation. And this is, in our judgment, the correct rule, sustained by the current of decisions and by right reason. The analogy drawn between such choses in action and deeds to land or bills of sale to personal property, is hardly accurate. The latter are tangible, visible, and have a definite locality, because they occupy space, but choses in action are intangible, and in fact have no material, visible locality. As a general rule of law, for other purposes than taxation, they follow the person of the owner. They are bought, and sold, and transferred by him; they may be stolen, sued for, etc., by stealing or suing for the paper which represents them. There are some old decisions on the question of the wife’s equity and right of survivorship indicating a different rule in such dtses, especially' of choses in action which cannot, at law, be transferred: See Bishop on The Law of Married Women, Title, Wife’s choses in action. But the current of authorities, as to stocks, bonds and notes for money, very decidedly fixes their locality at the residence of the owner of them. At any rate, this is true under the authorities for purposes of taxation: Johnson vs. Lexington, 14 B. Monroe, 648; Johnson vs. Commonwealth, 7 Dana, 335 ; 4 Bush, (Ky.,) 135; 23 California, 138; 38 Ibid., 461; 19 Maryland, 13 ; 34 Missouri, 323; 12 Iowa, 539. And in Cleaveland and Ashtabula Railroad Company vs. Pennsylvania, at a late term of the Supreme Court of the United States not yet put into book form, that Court decides the same thing, both upon principle and authority: See, also, 43 Georgia, 336. We are, for these reasons, of the opinion that bonds and other obligations for the payment of money, have their locality with the owner of them, and that the Court erred in enjoining the collection of the tax on the Central Railroad and City of Macon bonds.

2. But we do not agree with the Court as to the right of the city to tax State bonds. It is not pretended that the State has granted this right in terms. It is a question of some doubt whether a State can tax its own bonds. At any rate it is a matter of serious question whether it is right to do so. If a State contracts to pay a fixed interest on its bonds, it is rather a loose compliance with that contract to tax the bond one or two per cent. We will not say a State cannot tax its own bonds. But we do say that the presumption is, in our minds, very strong that a State has not conferred on another taxing power this right if there be no express words so declaring. The power of a municipality to tax State bonds is a power seriously to cripple the credit of the State — seriously to hamper her power to borrow money, and, in onr judgment, such a power is not derivable from a mere general power to tax property.

3. We think, too, that the city has no grant of the power to assess the additional per cent, in case of failure to pay promptly. So far as the right of the city is to be gathered from the Acts published in the City Code, we find no specific mode pointed out how its taxes are to be collected. The general rule is, as laid down in the books, that if no specific mode is pointed out, the tax, when assessed, is a debt, and is only collectable as other debts: See Dillon on Municipal Corporations, on this subject, and the numerous authorities there cited. We suppose the city has heretofore adopted the mode used by the State for the collection of its taxes, to-wit: by distress and sale of the property of the tax payer, and perhaps the power to assess and collect a tax implies this, though there are cases denying even this right: See 30 Alabama, 461; 1 Hulst., (N. J.,) 67; 3 Levintz, 281; 2 Maule & Sel., 60; see, also, Dillon on Municipal Corporations, sections 270, 287, 341, 355, 656, 657. The power in the city of Augusta to collect by distress and sale may, perhaps, also be fairly implied from the Act of incorporation and the amendments. It has, too, doubtless, been so long in use, unquestioned by the people or the Legislature, as now to have the authority of a presumptive grant. But we are not prepared to extend it. The right to enforce the ordinances by fine does not, we think, fairly include the right to assess a fine for the non-payment of a tax or other debt to the city, merely because that debt grows out of an ordinance. At common law all taxes by corporations and all fines were only debts, and were only recoverable by suit at law. At least, a tax is only a debt, and tbe power to collect it by a fine must be granted; it cannot be presumed.

Judgment reversed.