Swallow v. Thomas , 15 Kan. 66 ( 1875 )

The opinion of the court was delivered by

Brewer, J.:

In the year 1872 plaintiff and one Peter Aller were the owners, as partners, of the Marion County Bank, an unincorporated bank in the town of Florence, and county of Marion. Plaintiff resided in Shawnee, and Peter Aller in Marion county. The latter was the cashier and principal accounting officer. As such, he listed the entire personal property of the bank for taxation in the county of Marion. Was it properly all taxable in that county? or, only the interest of Aller there, and the interest of plaintiff in the county of his residence? This is the question presented in this case. And it is a question involving merely the construction of our statutes; for of the power of the legislature to separate for the purposes of taxation, the situs of personal property from the domicile of its owner, there can be no doubt. Tappan v. National Bank, 19 Wall. 490. Nor any of the fact that, unless it has so separated it, it is taxable at his domicile. This general doctrine of the common law, expressed as it is by the maxim, mobilia personam sequuntur, finds also recognition in our tax law. “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.” (Gen. Stat. p. 1023, § 8.) This clause came up for consideration in the case of Griffith v. Carter, 8 Kas. 565. There the plaintiffs, partners in business, all resided in Douglas county, but had a stock of goods in Coffey county in charge of an employé. The former was held the situs of the stock for taxation. (A better rule has been since established by the legislature: Laws of 1874, p. 210.) Counsel for plaintiff mainly rely upon this case of Griffith v. Carter, and consider it decisive. And if the clause of the statute quoted was the only one bearing upon the question, there would be no room for doubt. But in § 7 we find this provision : “The property of persons or corporations, whose assets are in the hands of receivers, shall be listed by such receivers, and the property of every other corporation, company, or firm, subject to taxation under this act, shall he listed by the principal accounting officer, or by an agent or partner thereof.” This seems to contemplate that the property of a firm should be listed as a whole, and not that each partner should list his property separately. The partnership is here regarded, as it is for so many other purposes in the law, as distinct from the individuals composing it, as if it were a third person. And it, as a single owner of so much property, is compelled to list the same for taxation. Corporations, companies, and firms, are placed upon the same basis. They are treated as separate, independent owners of property. The same thing appears elsewhere in the tax law. See §§ 4, 5, 6, and 8, in which mention is frequently made of “person, company, or corporation.” Now, effect must be given if possible to every portion of a law. By sustaining the listing made by Aller, we do in this case give effect to both provisions quoted. The property of the firm was listed as an entirety; it was listed by the-principal accounting officer, and a partner; and it was listed in the township in which the person charged with the tax resided, for each member of a firm is chargeable with its entire debts. In fact, a partner’s interest in the partnership property is a right to his share of whatever remains after all the partnership debts are paid. The whole of this tax was chargeable upon Aller, and might have been collected from his separate property. The firm too, so far as it had a residence distinct from the residence of the different partners, resided in Marion county. This case differs from that of Griffith v. Carter in this, that all the partners there resided, and the firm of Griffith, Duncan & Duncan which owned the goods, was located in Douglas county, so that there was no one in Coffey county who could properly be said to be chargeable with the tax, or whose property would be at all diminished by its payment. Listing the property in Douglas county, they listed the property of the firm as a whole, listed it by the partners, and listed it in the township in which all the persons charged with the tax resided. The difference is obvious and vital. Upon the facts as stated, while the case is not free from doubt, we think the listing by Aller must be sustained, and the judgment of the district court will be affirmed.

All the Justices concurring.