OGILVIE' V. ORAWFORD OOUNTY.
not make an usurious contract void; indeed, such a co'ntract is only voidable as to the excess of interest. Did our legislature intend in this respect to overturn one of the great principles governing commercial paper in this and other countries 'I It is noticeable that the legislature does not, in the sections just referred to, use terms appropriate to commercial paper. The language is that the proper "assignee," not indorsee, shall be entitled to the remedy over against the usurer. In strict legal parlance we do not use the term "assignee" when we mean to designate the indorsees of hills and notes. I am therefore inclined to think that the legislature, in using the term "assignee," did not mean to provide for innocent indorsees of mercantile paper who were already amply protected by the law merchant, but for that large class of assignees who, in the absence of such a provision, would step into the shoes of their assignors with just the same rights, remedies, and equities to which their assignors are entitled, and none other. Judgm.ent for the complainant.
OGILVIE V. CRAWFORD COUNTY.
(Circuit Oourt, D.lOUJa. May 11,1881.)
PROPERTY IN TRUSIT-TAXATION.
One state cannot levy a tax upon property in commercial tmnsittl> another state or country.
A cargo of coni purchased in Iowa for the purpose of shipment tl> Caliadfl. was re/JlOved to the railway and temporarily stored in cl'ibs to await transportation. Held, while so stored for a reasonable time, to be in transit and exempt from taxation, provided the purchaser' intended to ship immediately, or as soon as transportation could be, conveniently obtained.
Demurrer. A. J. C. Cummins, for plaintiff. J. F. McJunkin, for defendant.
LOVE, D. J. This case is before the court on demurrer to the petition. The petition alleges that the plaintiff, who is a citizen of Canada, had on January 1, 1879, certain cribs of corn which had been purchased in Crawford county, Iowa, for the purpose of shipment to Canada; that said corn had been moved by the plaintiff from its place of production towards its destination beyond the state and temporarily placed in cribs; that it was in cribs, awaiting shipment by the Chicago & Northwestern Railway, on the first day of January, · 1879; that the plaintiff's intention was at all times to move said corn in bulk beyond the state, and not to use, sell, or manufacture the same within the state of Iowa; and that the corn has since been removed in bulk out of the state, no part 6f the same having been sold, used, or manufactured therein. It is alleged further that while the corn was so temporarily iIi cribs it was assessed as property of a non-resident, ata:x.levied upon the same, and a warrant issued to the sheriff, whereby the plaintiff was compelled, iIi order to save his property, to pay the taxes levied aforesaid. There is a second count stating different circumstances, but presenting the same question. The petition prays judgment for the amount of taxes paid, amounting to $502.22, with interest. The question thus presented is whether or not the property taxed was, on the first day of January; 1879, when it was assessed for taxation, in the course of transportation from the state of Iowa to any other state or country as an article of commerce. In a word, was it in commercia.l1iransit ? That a ;statecannot levy a tax upon property in transit to other states and countries is clear, because the property then has no situ8 in the state, in the proper legal sense of that word.· It .would be a most serious evil, and a direct obstruction to interstate commerce, for any state to exercise the po"er of taxing property while in commercial transit to or ·countries.· ,, The question then is, was the property in commercial transit? The petition is not. as clear and explicit as it rilight be, but the fair construction of it is that the pur.
OGILVIE V. dBAWFORD COUNTY.
chased the eornfrom various parties, caused it to rembved to the railway and there put it in cribs temporarily, t9 await transportation, and with the purpose on his part to h.ave carried beyond the state. ., This allegation of intention is essential, because ot,herwise a purchaser might crib his corn on a railway with no purpose of immediate shipment, but for the purpose of awaitil1gthe future course of the markets, or with intent to evade taxation; in which cases the transit would, in my opinion, be treated as at an end, for the time being at least. . If this W3re not so, a party might keep his property in cribs near a railroad for an indefinite period of time, exempt from taxation, without any purpose of immediate shipment. There must be in my judgment a purpose to ship immediately, or at least as soon as transportation can be conveniently obtained, followed by actual shipment in· a reasonahle time, in order to exempt the property from taxation. With this qualification the crihbing of the corn may be treated as a thing done from necessity or for convenience in the course of transportation. It certainly 'would be nnreasonable to require that a party, in order to bring himself within the protection olthe law as a shipperin transitu, should transfer the corn directly from his wagons to the ears, or place it upon the ground to be thence transferred to. the ears; and this he would be compelled to do unless he may place it in cribs or store it temporarily in warehouses 10 await the means of shipment in the ordinary course of transportation. It would seriously cripple and obstruct commerce in the productions of this state, and thus inflict a great injury upon our own people, if a purchaser could not temporarily deposit the property purchased in cribs or warehouses to await the means of transportation. I have examined the cases cited by the defendant's counsel, and I cannot see that any of them touch this case at all except Carrier v. Gordon, 21 Ohio, 605. That caSG is similar to the present, but clearly distinguishable from it. Indeed, if the language of the court in deciding it be well considered,
748 the. reason of that case supports our judgment in the present case. In Oarrier v. Gordon, the property purchased had not been moved at all by the purchaser. It remained at the place o! purchase, and could not, without the utmost violence to language, be said to have been in the course of transportation. Indeed, the averment was not that the property was in transit, but that the plaintiff intended to remove it from the state upon the opening of navigation, etc. In delivering the opinion the court say:
" It is true that in order to constitute it property in the state, within the meaning of the law, it must have a situs in the state. If it is, at the time the tax attaches, in tra1tsitu, either through the state or from a point in the state to a point outside the state, it is not to be regarded as propelty in the state, Within the xp,eaning of the statute, but as property iog to the place of its destination. ,But such was not the situation of this property' at the time it was'returned for taxation.' 'There is nothing in the plaintiff's petition toshow that the plaintiff's timber had in any sense started on its journey, or had been removed from the place or places it had been purchased. ' , ,'. j, To say that the simple purchase of the property with an' intention to remove it'lfould relieve it from liability to taxation, would be to makhts liability.depelld 'upr;>n the mere intention of the owner," etc.
We see :nothing, to obJect to in the doctrine oHhe Ohio court in' this. eaS6. It seems to U8 to be entirely in harmony with our judgment in the present case. Demurrer overruled.
R. Co. v. R. 00.
(Circuit Court, D. Iowa, O. IJ
January 21, 1881.)
The general solicitor of the plaintiff corporation, being an officer unknown to the articles of incorporation and the by-laws, has no authority to institute and prosecute suits without the sanction of the board of directors, and such sanction not appearing in this case, the suit was dismissed on motion.
Motion to Dismiss.