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presently see, it is unnecessary to speculate upon such a contingency.
Before passing to a consideration of the statutes relating to revenue, it is appropriate, though perhaps not necessary, to notice briefly the character of plaintiff's control over Pullman Bleepers upon its line. Notwithstanding the express statement, among the stipulated facts, that these cars are the sole and exclusive" property of another corporation, it is obvious from the remaining provisions of the stipulation itself, coupled with concessions made by counsel in argument, that plaintiff had an important and valuable interest therein. By virtue of a contract with the owner, covering a period of fifteen years, these cars were under the control of plaintiff, with an option in favor of plaintiff for the purchase thereof. They took the place, upon plaintiff's trains, of ordinary passenger-coaches. For persons carried in the plaintiff collected the usual railroad fare; the revenue thus received being several times the amount exacted by the owner (the Pullman company) for the additional luxury of sleeping accommodations.
The Pullman company employed a car-conductor and porter to preserve order, collect berth-tickets or fares, and attend to the convenience and comfort of passengers.
But the cars, like all the rest of the train, were subject to the control of the train-conductor, and the Pullman employees were governed by the general railroad regulations. In nearly all respects during the term of the contract, plaintiff's dominion over these sleepers was as complete and exclusive as if it had been the absolute owner.
Under a contract substantially similar, it was held, in Illi. nois, that the railway company possessed "such a qualified property” in the Pullman cars, “that, for taxable purposes, they may be regarded, within the fair meaning of the statute, as belonging' to the rolling stock” of the company, and subject to taxation as such: Kennedy v. St. Louis etc. R. R. Co., 62 Ill. 395. The condition of our legislation, however, obviates the necessity, were we disposed so to do, of adopting the Illinois theory regarding the qualified property or ownership of the railway company.
Had subdivision 7 of section 2, found on page 318, Session Laws of 1889, been in force when the assessment under consideration was made, the present controversy could not have arisen; for this provision places the legislative intent in the premises beyond a reasonable doubt. But while the statutes by which the present decision must be controlled are not so clear, we encounter no serious difficulty in discovering the legislative purpose.
By section 2, page 322, Session Laws of 1885, “the president, auditor, general manager, or other authorized agent of any corporation owning or operating any cars, rolling stock, or any property whatsoever on any line of railroad in the state," is required to furnish the state board of equalization, on or before April 1st of each year, with an affidavit specifying all such property "owned or operated” by the company, together with the value thereof. It is probable that, through inadvertence, reference to this provision was omitted in the succeeding section, which declares that the state board of equalization shall assess the property enumerated in the first section of the act in the manner provided by section 2847 (sec. 36, c. 94) of the General Statutes. The latter provision directs the board to ag. Bess against the railway company all personal property exclusively used in operating the road. Whether established rules of construction permit us to read the statute as if it contained this reference, we shall not pause to consider; for if they do not, we must nevertheless turn to said section 2847 for the authority of the state board in the premises.
Section 2, above mentioned, clearly operates as an implied repeal of at least so much of said section 2847 as relates to a sworn report by railway officials touching railway rolling stock. Thus for the word “owned,” in section 2847, were substituted, so far as rolling stock is concerned, in section 2, the phrases, "owning or operating" and "owned or operated." By this change the legislature indicated its purpose to place all rolling stock used or operated by a railway company upon the same footing with reference to taxation, regardless of the interest, as lessee or owner, of the company operating it.
Hence the law as it stood when the tax in controversy was levied directed, -1. That the proper railway official report to the state board of equalization all rolling stock “owned or operated” by the company; and 2. That this board assess against the railway company all property "exclusively used” in operating the railroad.
We cannot concede the correctness of the proposition that the phrase "exclusively used,” as thus employed, applies to such rolling stock only as always remains upon the company's lines and under its immediate control. If this were true, it would follow that rolling stock owned by the company, which frequently passes over connecting lines, such as loaded freight-cars, might escape taxation altogether. For, under the provision directing the assessment by the board, coupled with the amendment of 1885, rolling stock owned is upon the same footing with rolling-stock leased; either must be “exclusively used.” The word “exclusively” is a limitation upon the power of the state board of equalization. This specific tribunal was provided for the purpose of assessing railway property, real and personal, that cannot, in the nature of things, be intelligently and equitably reached with the ordinary taxing machinery. Such personal property as is owned or controlled by railway companies, and is not used in the direct operation of the roads, cannot be assessed by the board. This is true, even though the property may be so employed as to indirectly aid in carrying on the business. But it is unnecessary to further comment upon the affirmative legislative designs in the premises. It is sufficient for the present to declare that it was not the intent to exempt cars from taxa tion merely because, in performing their regular journeys, they sometimes pass out of the state, and then become temporarily useful in operating other railroads.
Considering, therefore, the existing legislation as a wholo, together with the clear and imperative constitutional declaration touching the subject, we are of the opinion that Pullman sleepers controlled and operated, though not owned, by plaintiff were properly assessed to it for taxation. Whether plaintiff may compel the Pullman company to refund the taxes thus paid, is a question we are not now called upon to decide.
It appears from the agreed statement that the cars in question were employed one third of the time outside the state. In view of all the facts before us, we may fairly assume that the board of equalization took this circumstance into consideration and assessed the cars at two thirds of their actual value. Apportionments dissimilar in form, but calculated to accomplish similar equitable results, deserve commendation, and have received judicial approval: Pullman Palace Car Co. 1. Pennsylvania, 141 U. 8. 18.
The application for an injunction is accordingly denied.
TAXES — PERSONAL PROPERTY - WHERE MAY BE TAXED. — The personal property of a citizen of another state, employed in this state, is subjeot to taxation here, in the same way as though it belonged to a citizen of this state: Battle v. Mobile, 9 Ala. 234; 44 Am. Dec. 438, and noto, Visible, tangiblo
AX. ST. REP. VOL. XXXI-17
: personal property, permanently located in another state, lo taxable there, irrespective of the domicile of the owner: Commonweallik v. American Dredge ing Co., 122 Pa St. 386; 9 Am. St. Rep. 116, and note. See notes to Pitto burgh etc. Coal Co. v. Bates, 8 Am. St. Rep. 521, and Phoenix Ins. Co v. Commonwealth, 96 Am. Dec. 338. Tangible personal property located in any town or city of this state is taxable where situated: Ferris v. Kimble, 75 Tex. 476. A portable steam saw-mill temporarily located in a town is not tax. ablo there w "machinery employed in any branch of manufactures, " and “situated or employed ” there, within the meaning of the statutes of this state: Ingram v. Cowles, 150 Mass. 155. Personal property temporarily abo sont from the owner's residence to be immediately returned is taxablo at his residence: Sangamon etc. R. R. Co. 4. Morgan County, 14 Ill. 163; 66 An. Deo. 497. For an extended discussion of the question as to where personal property may be taxed, see note to New Albany v. Meekin, 56 Am. Deo. 823637.
TAXES. – ROLLING Srook OF RAILROADS, WHERS TAXABLE: See noto to New Albany v, Meekin, 66 Am. Dec. 635. The rolling stock of a railroad is so connected with uses and purposes of the track that the legislaturo may treat it as real property for the purposes of taxation: Louisville eta R. R. Oo V. State, 25 Ind. 177: 87 Am. Deo. 358. The rolling stock of a foreign rail. road company passing across the state for the purpose of interstate commerco is not subject to taxation in that state: Bain v. Richmond eta B Pha Co., 105 N. C. 363; 18 Am. St. Rep. 912
TAXATION OF HIRED SLEEPING-CARS. — Sleeping-car hired and ran by • nailroad in Colorado from a company in Illinois having ao office or place of business in Colorado are taxable in the lattor stato: Carlisle v, Pullman de Cor Ca, 8 OoL 320; B4 Am. Rep. 653.
PEROT V. COOPER.
(17 COLORADO, 80) NHOOTIABLE INSTRUMENTS - CONSIDERATION, WHE PERIOD. - When the
execution and delivery of a note is admitted, the presumption is that it
is founded upon a sufficient consideration. NEGOTIABLE INSTRUMENTS - POSSESSION, WHEN Raise PRESUWITION OF
OWNERSHIP. – Possession and the production of a noto ancanceled and pnextinguished by indorsement of payments, or otherwiso, lo prima facie
evidence that the holder is the owner, and that the note is unpaid. PLBA OF PAYMENT 18 AN AFFIRMATIVI DEFENSR, and must be supported by
a preponderance of the evidence. MORTGAGE. — A CONVEYANCE ABSOLUTE IN FORM will be adjudged to be •
mortgage, when it is shown, by evidence clear, certain, unequivocal, and trustworthy, that such instrument was executed, delivered, accepted, and intended by the parties to secure the payment of a debt. But when there is a substantial conflict in the evidence, a more preponderance thereof is not sufficient to warrant a change in the character of dood
or other solemn instrument in writing. PAYMENT — APPLICATION OF. – A person indebted on separato and distinct
accounts has the right to have his payments applied to snok account n
he sball direct. A creditor receiving the money with each direction is bound to give credit accordingly; but if » payment is made without direction as to its application, the creditor may apply it to any debt duo
him at the time from such debtor. PATIENTY - IMPLIED APPLICATION 07. - It is not always necessary that a
debtor expressly direct the application of a payment made to his creditor, and if from the circumstances his purpose may be clearly implied, the creditor is bound to regard it. When a creditor claims that his debtor owes him upon two separate demands, one of which is ad. mitted and the other disputed, « payment made by the debtor will be presumed, in the absence of evidence, to be made upon the demand ad. mitted, rather than upon the one disputed, at the time of making such paymento so, also, an andesignated payment will be applied to an in
terest-bearing demand, rather than to one not bearing interest. LISTRUCTIONS - REVERSIBLE ERROR. - The giving of an instruction which
is misleading as to the issue, inapplicable to the evidence, and calculatod to prejudice the substantial rights of the losing party entitlos him to a roversal, R H. Gilman and I. E. Barnum, for the plaintiff in error H. T. Bemet and W. C. Kingsley, for the defendant in error.
ELLIOTT, J. The principal matters in controversy in this cause having occurred before the death of Isaac Cooper, both parties were placed at a disadvantage in the production of ovidence, - the defendant by the death of her intestate, the plaintiff by force of the statute: See Acts 1870, p. 63; Mills's Ann. Stats., sec. 4816.
It was admitted upon the trial that the consideration for the notes sued on was a loan of twenty thousand dollars made by Perot to Isaac Cooper on the day the notes bear dato; and that said loan was also the consideration for the contract or
agreement" made between said parties on the same day, to wit, September 30, 1882. By the terms of said contract, Isaao Cooper, in consideration of one dollar and other good and valuable considerations acknowledged to have been received by him, covenanted and agreed to transfer and convey to said Perot certain interests in certain stocks, bonds, lands, letters patent, etc.
It is undisputed that on February 25, 1887, the plaintiff Perot and Isaac Cooper met in the city of Philadelphia and negotiated a settlement of certain matters pertaining to the contract of September, 1882, whereby said Perot was to roceive a deed or deeds for one hundred lots in the town of Glenwood Springs, Colorado, and also to receive from said Cooper the sum of $34,878.42 in money, a portion of which sum is conceded to have been for interest accrued to that date on the