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66 N. E. 93; State v. Covington & C. 104; Page v Edmunds, 187 U. S. 596, Bridge Co. 84 Ohio St. 489, 95 N. E. 47 L. ed. 318, 23 Sup. Ct. Rep. 200; 1155; Board of Education v. Board of Van Allen v. Assessors (Churchill v. Education, 46 Ohio St. 595, 22 N. E. Utica) 3 Wall. 573, 18 L. ed. 229; 641; The Messenger v. Pressler, 13 Farrington v. Tennessee, 95 U. S. 679, Ohio St. 255; Buck v. Beach, 206 U. S. 24 L. ed. 558; Davidson v. New Or392, 51 L. ed. 1106, 27 Sup. Ct. Rep. leans, 96 U. S. 97, 24 L. ed. 616; State 712, 11 Ann. Cas. 732.

v. McPhail, 124 Minn. 398, 50 L.R.A. Statutes should not be so construed (N.S.) 255, 148 N. W. 108, Ann. Cas. as to make them unconstitutional, or 1915C, 538; Platt v. Jones, 96 N. Y. raise questions of constitutionality. 24; Re Currie, 107 C. C. A. 369, 185 Burt v. Rattle, 31 Ohio St. 116; Fox

Fed. 263; Powell v. Waldron, 89 N. v. Washington, 236 U. S. 273, 59 L. ed.

Y. 328, 42 Am. Rep. 301; Nashua 573, 35 Sup. Ct. Rep. 383; United

Sav. Bank v. Abbott, 181 Mass. 531, States v. Jin Fuey Moy, 241 U. S. 401, 60 L. ed. 1064, 36 Sup. Ct. Rep. 658,

92 Am. St. Rep. 430, 63 N. E. 1058; Ann. Cas. 1917D, 854.

O'Dell v. Boyden, 80 C. C. A. 397, If there is any specific reference in

150 Fed. 731, 10 Ann. Cas. 239; Re the statutes to the membership in Hellman, 174 N. Y. 254, 95 Am. St. Rep. question, it is contained in the section 582, 66 N. E. 809; Kirtland v. Hotchrelating to rights and privileges be kiss, 100 U. S. 491, 25 L. ed. 558; longing or appertaining to real estate Bonaparte v. Tax Court, 104 U. S. 592, which, if located outside the state, are 26 L. ed. 845; Covington v. First Nat. not to be taxed.

Bank, 198 U. S. 100, 49 L. ed. 963, 25 Selliger v. Kentucky, 213 U. S. 200, Sup. Ct. Rep. 562; Southern P. Co. v. 53 L. ed. 761, 29 Sup. Ct. Rep. 449; Kentucky, 222 U. S. 63, 56 L. ed. 96, Hubbard v. Brush, 61 Ohio St. 252, 32 Sup. Ct. Rep. 13; Cooley, Taxn. 3d 55 N. E. 829; Toledo Commercial Co. ed. 26, 89; Union Refrigerator Transit v. Glen Mfg. Co. 55 Ohio St. 217, 45 Co. v. Kentucky, 199 U. S. 194, 50 L. N. E. 197; People ex rel. Lemmon v. ed. 150, 26 Sup. Ct. Rep. 36, 4 Ann. Feitner, 167 N. Y. 1, 82 Am. St. Rep. Cas. 493; State Tax on Foreign-held 698, 60 N. E. 265; Baltimore v. John Bonds, 15 Wall. 300, 21 L. ed. 179. son, 96 Md. 737, 61 L.R.A. 568, 54 Atl. Stock, or shares such as those under 646; Horrigan v. Mendelson, 18 Ohio consideration, are personal property, N. P. N. S. 596; Standard Gas Power no matter where the corporation is or Co. v. Standard Gas Power Co. 224 Fed. may be situate. 990; Murphy v. Ford Motor Co. 241 Lee v. Sturges, 46 Ohio St. 153, Fed. 134; State v. McPhail, 124 Minn. 2 L.R.A. 556, 19 N. E. 560; West Wis398, 50 L.R.A. (N.S.) 255, 145 N. W. consin R. Co. v. Trempealeau County, 108, Ann. Cas. 1915C, 538; State ex rel. 93 U. S. 595, 23 L. ed. 814; Tucker v. Goetzman y, Minnesota Tax Commis

Ferguson, 22 Wall. 527, 22 L. ed. 805; sion, 136 Minn. 260, 161 N. W. 516.

Bradley v. Bauder, 36 Ohio St. 28, For Ohio to attempt to tax this

38 Am. Rep. 547; Hawley v. Malden, membership will be taking of

232 U. S. 1, 58 L. ed. 477, 34 Sup. Ct. property without due process of law,

Rep. 201, Ann. Cas. 1916C, 842; Exin violation of the Constitutions of

change Bank v. Hines, 3 Ohio St. 1; Ohio and of the United States. Louisville & J. Ferry Co. v. Ken

Zanesville v. Richards, 5 Ohio St. 589; tucky, 188 U. S. 385, 47 L. ed. 513,

Cincinnati v. Connor, 55 Ohio St. 82, 23 Sup. Ct. Rep. 463; Hawley v. 44 N. E. 582. Malden, 232 U. S. 1, 58 L. ed. 477,

Per Curiam: 34 Sup. Ct. Rep. 201, Ann. Cas. 1916C, 842; Fidelity & C. Trust Co. v. Louis Is the membership in the New ville, 245 U. S. 54, 62 L. ed. 145, L.R.A.

York Stock Exchange property? If 1918C, 124, 38 Sup. Ct. Rep. 40.

so, is the situs of the property at Messrs. Louis H. Capelle and S. C. the domicil of the owner? If these Roettinger, for defendants in error: questions are answered in the af

A membership in a stock exchange firmative, do the statutes of Ohio is property and taxable.

provide for its taxation? Rogers v. Hennepin County, 240

The record shows that the memU. S. 184, 60 L. ed. 594, 36 Sup. Ct. Rep. 265; Hyde v. Woods, 94 U. S. 523, 24

bership is a valuable right The L. ed. 264; Sparhawk v. Yerkes, 142 privileges of a member are not only U. S. 1, 35 L. ed. 915, 12 Sup. Ct. Rep. valuable in their use, but the mem

(100 Ohio St. 251, 126 N. E. 57.) bership has a market value. Plain and the fact that the assets of the tiff paid more than $60,000 for his association consist,

Tax-property seat. The Stock Exchange owns the in very large part, -membership in

stock exchange. entire capital stock of the Exchange of the capital stock Building Company, which owns the of the realty corporation in New real estate in which the business is York city, and that the privilege is conducted. Facilities are furnished to do business in the building there, for the conduct of brokerage busi does not give the membership the ness by members of the Ex- quality or character of real propchange.

erty. The shares of stock in a realThe right of a member is to trade ty company are personalty. The at the Exchange in New York, and things that the company owns, not elsewhere, in securities listed on whether real or personal, do not afthe Exchange. Admissions to mem fect the character of the shares of bership are made on the vote of the stock in the company. Where is committee on admissions. Member the situs of the property or memship may be transferred on the ap bership owned by the member? proval of the transfer by the com It is well settled that a state has mittee. On the death of a member no power to tax personal property his seat is sold and the net proceeds permanently situated in another of the sale, after payment of claims state. Southern P. Co. v. Kentucky, of members, are paid to his estate. 222 U. S. 63, 74, 56 L. ed. 96, 100, When one has become a member of 32 Sup. Ct. Rep. 13. the New York Stock Exchange, he As we have seen, the rights of a has a contractual right to have the member are contractual. There are association conducted in accordance mutual covenants and agreements with its rules and regulations. between the Exchange and the

All of these things are essential members, as well as the obligations incidents of property. The restric assumed by the members toward tions which the mutual agreements each other. These contractual of the membership place upon the rights are enforceable, like other use and the ownership may possibly contract rights. They are choses in decrease its market value. On the action. other hand, these very restrictions A state has power to tax intangimay increase its value. They do ble property, choses in action, at not affect its status as property any the domicil of the owner, and such more than restrictions on the lots domicil is the situs of that class of in a subdivision of real estate.

personal property. 1 Cooley, Taxn. In Rogers v. Hennepin County, 3d ed. 89; Southern P. Co. v. Ken240 U. S. 184, 60 L. ed. 594, 36 Sup. tucky, supra, 222 U. S. 63, 76; and Ct. Rep. 265, it is held that mem Union Refrigerator Transit Co. v. berships in exchanges, such as in Kentucky, 199 U. S. 194, 50 L. ed. volved in this case, are property, 150, 26 Sup. Ct. Rep. 36, 4 Ann. Cas. notwithstanding restrictions upon 493. their use, and nothing in the Feder In the recent case of Fidelity & C. al Constitution prevents their being Trust Co. v. Louisville, 245 U. S. 54, taxed; that whether such member

62 L. ed. 145, L.R.A.1918C, 124, ships are taxable under state stat

38 Sup. Ct. Rep. 40, Ann. Cas. 1918C, utes is a matter of local law; that 1201, it was held that liability to the memberships are distinct from taxation in one state does not necesthe assets of the corporation, and sarily exclude liability in another. taxing members on their member

Now, in this case, the right seship and the corporation on its as cured to a member to go to the sets does not amount to double taxa Stock Exchange in New York and tion.

there conduct his business in stocks In the case we have here the in the manner prescribed is doubtmembership is personal property, less the most

less the most valuable right of

taxation at domicil of owner.

membership. But as incident to ty at its true value in money, with his membership he is also granted right to exempt certain property. the right to deal with and through It is well determined that this secother members, on certain fixed per tion is a limitation on the general centages and methods of division of power to tax conferred by the 1st commissions. This right to secure section of article 2 of the Constituthe services, of other members at a tion, and, unless tax laws have been lower rate, and to split commissions, enacted which include the property is a very valuable right. By it the here in question, it is not taxed. It plaintiff in Cincinnati is enabled to is, of course, conceded that taxing properly hold himself out to the statutes are to be construed strictworld as a member, entitled to all ly in favor of the citizen and against the privileges and able to secure all the taxing authority. of the advantages, of the New York Section 5328, General Code, reads Stock Exchange. All of which ad as follows: “All real or personal vantages are denied to nonmembers. property in this state, belonging to He is thus enabled to conduct from individuals or corporations, and all and in his Cincinnati office a large moneys, credits, investments in business through other members in bonds, stocks, or otherwise, of perNew York. All of which is regular sons residing in this state, shall be ly and properly done. The situs of subject to taxation, except only the valuable contractual property such property as may be expressly

right of plaintiff is exempted therefrom. Such properat the domicil of ty, moneys, credits, and investments

plaintiff in Cincin shall be entered on the list of taxnati, and the state of Ohio has the able property as prescribed in this right to tax it here.

title.In deciding that shares of stock Section 5325, General Code, conconstitute property, different from tains the following: “The term the capital or property of the com 'personal property' as so used, inpany, Judge Spear, in Lee v. Stur cludes first, every tangible thing beges, 46 Ohio St. 153, says at page ing the subject of ownership, 161, 2 L.R.A. 556, 19 N. E. 564: whether animate or inanimate, oth“The capital or property of the com er than money, and not forming pany may be largely real estate, part of a parcel of real property, while the shares are, in their nature, as hereinbefore defined ; second, the personalty. They can have no lo- capital stock, undivided profits, and cality, and must therefore, of neces all other means not forming part of sity, follow the person of the owner, the capital stock of every company, unless other provision is made by whether incorporated or unincorpostatute. The corporation is the le rated, and every, share, portion, or gal owner of all the property of the interest in such stocks." company, real and personal, and In Lee v. Sturges, supra, it is said within the powers conferred upon (46 Ohio St. at page 159): "For it by its charter, and for the pur every presumption is in favor of poses for which it was created, can that construction of the law which deal with the corporate property as gives effect to the requirement of absolutely as a private individual can the section of the Constitution redeal with his own. ... The shares ferred to, and we are forced to the of stock may be worth much more conclusion that the general assemthan the property of the corpora- bly in enacting this law intended, tion; that is, the franchise may be so far as the complex nature of very valuable, while the visible capi- human business affairs should make tal may be of but little value.”

it practicable, to include within the The Constitution ($ 2, art. 12) taxing provisions all property withenjoins the legislature to enact laws in the state, and not to exceed in its taxing by a uniform rule all proper- exemptions the limit prescribed, as

(100 Ohio St. 251, 126 N. E. 57.) to persons, of 'personal property not but out of abundant caution proexceeding in value $200 for each in vides that the term shall include the dividual.' And, further, that where things named.

things named. It cannot be conan exception or exemption is strued as if it read “the term shall claimed, the intention of the general only include." assembly to except must be ex As pointed out in Ohio Electric R. pressed in clear and unambiguous Co. v. Ottawa, 85 Ohio St. 229, 236, terms. “The exemption must be 97 N. E. 835, the maxim, "expressio shown indubitably to exist. At the unius exclusio alterius," is to be apoutset every presumption is against plied only as an aid to discover init. A well-founded doubt is fatal to tention, and not to defeat clear inthe claim. It is only where the tention. terms of the concession are too ex In view of the plain provision of plicit to admit fairly of any other the Constitution enjoining the taxaconstruction that the proposition tion of all property, real and personcan be supported.' West Wisconsin al, of the equally plain provision of g

Co. v. Trempealeau County, 93 5328, General Code, passed in obediU. S. 595, 23 L. ed. 814; Tucker v. ence to that constitutional injuncFerguson, 22 Wall. 527, 22 L. ed. tion, there can be no doubt that when 805. Intent to confer immunity it is once determined that the memfrom taxation must be clear beyond bership in question is personal propa reasonable doubt; for, as in case erty, and that its situs is the domiof a claim of grant, nothing can be cil of the plaintiff in Hamilton taken against the state by presump county, it is taxable there. tion or inference."

Judgment affirmed. The provisions of $ 5328, General

Jones, Matthias, Johnson, WanaCode, are comprehensive and pro- maker, and Robinson, JJ., concur.

vide for the taxa-statutory authority for tion of all real or

Donahue, J., not participating. taxation.

personal property, Petition for rehearing denied. and that includes the property here Affirmed by the Supreme Court of in question.

the United States, November 7, Section 5325, General Code, does 1921 (U. S. Adv. Ops. 1921-22, p. not exclude any property or thing 18) – U. S. , 66 L. ed. - 42 from the term “personal property,” Sup. Ct. Rep. 46.


Situs for taxation of membership in exchange or board of trade.

Although in several instances the having a market value, and as such is question has arisen as to where intangible personal property, taxable membership in a stock exchange or at the domicil of the owner; saying board of trade is taxable, no other case that, although the restrictions which has been found discussing the precise the mutual agreements of the mempoint involved in the reported case bership placed on the use and own(ANDERSON V. DURR, ante, 82), and ership might decrease its market valthe same case in the United States Su ue, they would not affect its status as preme Court (U. S. Adv. Ops. 1921–22, property. The decision of the state p. 18) – U. S. 66 L. ed. —, 42 Sup. court was affirmed by the United Ct. Rep. 46. The holding therein was States Supreme Court on a writ of to the effect that a resident of Ohio certiorari. The latter court, of may be taxed on a membership or course, accepted the decision of the seat” which he holds in the New state supreme court that the seat in York Stock Exchange. The state the New York Stock Exchange had court adopts the view that such mem been subjected to taxation by the Ohio bership is a valuable property right statute, assuming the constitution


ality of the statute. In answering the 232 U. S. 1, 13, 58 L. ed. 477, 483, 34 contention that the statute was con Sup. Ct. Rep. 201, Ann. Cas. 1916C, trary to due process of law, on the 842; Fidelity & C. Trust Co. theory that the privilege of member Louisville (1917) 245 U. S. 54, 58, 62 ship in the Exchange was so insep L. ed. 145, 148, L.R.A.1918C, 124, 38 arably connected with specific real Sup. Ct. Rep. 40)." In overruling the estate in New York that its taxable contention that the plaintiff was situs must be regarded as not within denied the equal protection of the laws the jurisdiction of the state of Ohio, within the 14th Amendment upon the the court said: "It is very clear, theory that brokers in the same city however, as the supreme court held, are not taxed upon the value of their that the valuable privilege of such memberships in the local stock exmembership is not confined to the real change, nor upon the privilege of doestate of the Stock Exchange; that a ing business in New York Stock Exmember has a contractual right to change securities, the court said: "As have the association conducted in to the local exchange memberships, it accordance with its rules and reg may be that the failure to tax them is ulations, and, incidentally, has the but accidental, or due to some negliright to deal through other members gence of subordinate officers, and is on certain fixed percentages and not properly to be regarded as the methods of division of commissions; act of the state. If it be state action, that this right to secure the services there is a presumption that some fair of other members and to 'split com reason exists to support the exemption, missions' is a valuable right, by which not applicable to a membership in plaintiff in Cincinnati may properly the New York Exchange, and plaintiff hold himself out as a member entitled has shown nothing to overcome the to the privileges of the Exchange, presumption as to the privilege redenied to nonmembers; and that thus ferred to, it already has been shown he is enabled to conduct from and in that the rights incident to plaintiff's his Cincinnati office a lucrative bus property interest give him pecuniary iness through other members in New advantages over others in the same York. The court held, and was war business. Manifestly this furnishes ranted in holding, that the member a reasonable ground for taxing him ship is personal property, and, being upon the property right, although without fixed situs, has a taxable situs others enjoying lesser privileges, beat the domicil of the owner, mobilia cause of not having it, may remain sequuntur personam.

Nor untaxed.” The contention that the tax is plaintiff's case stronger if we as constitutes a direct burden upon intersume that the membership privileges, state commerce was dismissed exercisable locally in New York, groundless, with the observation that enable that state to tax them even ordinary property taxation imposed as against a resident of Ohio. See upon property employed in interstate Rogers v. Hennepin County (1916)

commerce does not amount to an 240 U. S. 184, 191, 60 L. ed. 594, 599,

unconstitutional burden upon the com36 Sup. Ct. Rep. 265. Exemption from

merce itself. Holmes, J., whose double taxation by one and the same

doubts as to the correctness of the state is not guaranteed by the 14th

views of the majority were shared by Amendment (St Louis Southwestern

Van Devanter and McReynolds, JJ., R. Co. v. Arkansas (1914) 235 U. S.

said that if left to himself he would 350, 368, 59 L. ed. 265, 273, 35 Sup. Ct.

have thought that the foundation and Rep. 99); much less is taxation by two

substance of plaintiff's right was the states, upon identical or closely re

right of himself and his associates lated property interests falling within

personally to enter the New York the jurisdiction of both, forbidden

Stock Exchange building and to do (Kidd v. Alabama (1903) 188 U. S. business there; that all the rest was 730, 732, 47 L. ed. 669, 672, 23 Sup. Ct. incidental to that, and that, on its face, Rep. 401; Hawley v. Malden (1914) was localized in New York, and, if so,


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