Griffith v. Carter , 8 Kan. 565 ( 1871 )

The opinion of the court was delivered by

Brewer, J.:

A single question is presented by the record and that is, in what county should certain property belonging to plaintiffs be listed for taxation. The facts are these: Plaintiffs all reside in Douglas county. They had a stock of goods in Burlington, Coffey county. The goods were in charge of Jacob A. Mareell, a clerk of theirs, for purposes of sale. They listed this property in Douglas county, and paid the taxes on it. Without their knowledge, consent, or authority, Mareell listed it in Coffey county, and the taxes not being paid a warrant issued to the sheriff of Coffey county. To restrain a levy under this warrant this action is brought.

i. Personal whoretoSo assessed. The maxim of the common law was'this: MobiUa seqwwntv/r fersonam. The domicile of the owner drew to it his personal estate wherever it might happen to be. In the absence of any statutory provision to the contrary this common-law rule would control, and personal property be taxable only where the owner had His domicile. Eut we are not left to this. ■The statute has in plain language affirmed the commonriQe> Tlie last clause of § 8 of the tax law, Gen. Stat., page 1023, is as follows: “And all personal property shall be listed and taxed each year in the township or city in which the person charged with the tax thereon resided on the first day of March.” Nowthe person chargeable with a tax is the owner of the property. 'Whatever provisions .there may be in the statute — and there are many — for securing a full listing of all taxable property by requiring executors, trustees, agents, and all persons having possession of the property of others to list it, still such provisions do not change the burden or charge of the tax. It rests upon the owner. Payment must come out of his pocket. His property must make good the tax. The private property of an administrator cannot be taken to pay the tax-levied upon the property of the estate of which he is administrator. Neither he nor his property is chargeable with such tax. It is no exception to the rule that an agent may be required to list the property of a nonresident owner and to be responsible for the tax, for the owner being beyond the reach of the sovereignty imposing the tax the only way he can be reached is through the person representing him within the sovereignty.

a. Construction of statutes. Again, where one article of a statute attempts to settle one class of questions its provisions are as a general rule, controlling upon such questions; and if in other portions of the statute are found provisions affecting such questions they will be held subordinate to those of that article. Thus, in the civil c0(^e 811 ai‘ticle on the counties in which actions miist be brought. It aims to determine all that class of questions. Now if in other portions of the code should be found provisions which under certain constructions would seem to bear upon the question of the places of actions, still such provisions would be construed as bearing chiefly upon the topics of the articles in which they are found, and in regard to the question of the places for bringing actions as subordinate to the provisions of the first named article; for the intent of the legislator, like the meaning of any other writer, is determined by construing his language with reference to the topic of which he is writing; and where he has divided his article into topics, he will be presumed to have said all he desires upon a given topic under its proper head. Now the section from which we have quoted is in art. 3, which is entitled “ By whom and where property shall be listed for taxation.” It is an article whose obvious aim and purport is to settle and determine all of those questions. Hence, where a matter of doubt arises between its provisions and other provisions of the statute, so far as the place of listing property is concerned, its requirements should be deemed controlling. We have called attention to this rule of construction because it is earnestly insisted that under § 17 of the tax law, Gen. Stat., p. 1026, Marcell, the agent, was justified in listing this property, and the county authorities of Coffey county in levying and collecting a tax upon it. That section so far as it bears upon this question is as follows: “ Every person who shall own or hold subject to his control any personal property within this state, which shall have been purchased with a view of being sold at an advance price or profit, or which shall have been consigned to him for the purpose of being so sold, shall be held to be a merchant; and when such person shall be required, according to the provisions of this act, to make out and deliver to the assessor a statement of his personal property he shall include in such statement the value of personal property appertaining to his business as a merchant.” This section is found in an article entitled “ Merchants and Manufacturers.” The ai’gument is this: Mareell holding this stoclc of goods under his control’w&s by this section a merchant; it was therefore his duty to list this stock. He lived in Coffey county, and listed his own property there; hence he was compelled to list this stock there. It being his duty to list, the coxmty authorities could rightfully accept the listing and impose and collect a tax from the property. The same argument will apply with equal force to the plaintiffs. They owned this stock; they were therefore merchants; it was their duty to list this stock when and where they listed their other personal property, as required by the provisions of the tax act. That act required them to list their other personal property in Douglas county; it was therefore their duty to list this stock in Douglas county. It being their duty thus to list, the county authorities of Douglas county could rightfully accept the list and impose and collect a tax. But this would result in taxing the same property twice. This section cannot as it seems to us determine in which county this stock should be listed for taxation, for by the terms of the section both plaintiffs and Marcell are merchants with reference to this stock. Both are so far as this section alone is concerned under equal obligations to list it. Listing it, they are compelled to list it in the counties of their respective residences. Thus listing it, the property would be subject to double taxation, "Whatever might be the efficacy of this section where the owner is a non-resident of the state, in determining the locus of a tax, where both owner and holder of the stock are the residents we conceive that it is powerless, and that the place of the tax must be settled by other provisions of the statute. Those provisions, as we have seen, require that this property be listed and taxed in Douglas county. The decisions of the supreme court of "Wisconsin, upon this point are entirely inapplicable here, for though the general provisions of their tax law are like ours, yet the paragraph corresponding to the one first quoted from our statute is as follows: “ Merchants’ and manufacturers’ stock shall be listed and taxed in the town or ward in which it was situated at the time of listing; but all other personal property shall be listed and taxed in the town or ward in which the person charged with the tax thereon resided at the time such property was listed.” Laws "Wisconsin, 1860, p. 401, § 5. The distinction between their statute and ours in reference to the point under consideration is too plain to require any further notice. Holding then as we do, that this stock was properly listed and taxed in Douglas county, we shall have to reverse the judgment of the district court and remand the case with instructions to overrule tbe demurrer to tbe petition of plaintiffs and proceed with the case in accordance with the opinions herein expressed.

Valentine, J., concurring.