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16 Iowa, 512; Buck v. Miller, 147 Indiana, 586, 597; Green v. Gruber, 26 Louisiana, 694; Cappen v. Hull, 21 Vermont, 152; Remo on Non-Residents, $$ 25, 136; Picquet v. Swan, 5 Mason, 35; McGoon v. Scales, 9 Wall. 23; Drake on Attachments, $ 57; Pyrolucite W. Co. v. Ward, 73 Georgia, 491; Waples on Attachments, $ 32; State v. Meyer, 41 La. Ann. 439; Hall v. Am. Refrigerator Co., 24 Colorado, 291; Am. Refrigerator Co. v. Hall, 174 U. S. 70; Union Refrigerator Co. v. Lynch, 177 U. S. 149; New York v. McClain, 170 N. Y. 374; Dewey v. Des Moines, 173 U. S. 193, distinguished, and see Bristol v. Washington County, 177 U. S. 133, 145; Pullman Co. v. Pennsylvania, 141 U. S. 18; Marye v. Balt. & Ohio Ry. Co., 127 U. S. 117, 123.
The United States bonds owned by a non-resident are subject to distraint to satisfy a charge against the owner. Plummer v. Coler, 178 Ohio St. 115; 27 Am. & Eng. Ency. of Law, 791. The auditor's duty to list property omitted to be returned does not depend on the presence of the property within the State. Sturges v. Carter, 114 U. S. 511, 518; Winona and St. Peter Land Co. v. Minnesota, 159 U. S. 526; Weyerhauser v. Minnesota, 176 U. S. 550; Gager v. Prout, 48 Ohio St. 89.
When the question under consideration is the right to an exemption from taxation the statute is strictly construed against the exemption. Railway Co. v. New Orleans, 143 U. S. 192; Insurance Co. v. Tennessee, 161 U. S. 174; Delaware R. R. Tax, 18 Wall. 206.
MR. JUSTICE Day, after making the foregoing statement, delivered the opinion of the court.
These cases may be considered together, as they are appeals from a single decree and involve the right to assess and collect taxes upon the municipal bonds deposited by the insurance company under the laws of Ohio.
A considerable part of the opinion of the court below and the discussion in the briefs of counsel goes to the question of the
power of the State to tax bonds, held as these were, within its jurisdiction. At the oral argument, however, the learned counsel representing the insurance company conceded that there was legislative power to impose the taxes in question. A reference to the decisions of this court makes it perfectly plain that such taxation is within the power of the State New Orleans v. Stempel, 175 U. S. 309; Bristol v. Washington County, 177 U. S. 133; Blackstone v. Miller, 188 U. S. 189; Board of Assessors v. Comptoir National, 191 U. S. 388, 403; Carstairs v. Cochran, 193 U. S. 10.
The contention for the company is, that conceding the power of the State, it has never been exercised in the only way to make it effectual, which is by statutory enactment, and that the policy and statutes of Ohio have never authorized taxation of bonds deposited under the conditions shown in this
The question, therefore, is, have the statutes of Ohio, read in the light of the construction placed upon them by the Supreme Court of the State, conferred the right to tax these municipal bonds?
Before entering upon a consideration of the statutes we may say, in general terms, that we agree with the learned counsel for the insurance company, that the scheme of taxation of personal property in Ohio involves the requirement that it shall be returned or listed by some person or corporation whose duty it is by law to return or list such property. Provision is not made for assessing or taxing personal property by proceedings in rem, but before a recovery for taxes can be justified,
, either by action or distraint, it must appear that it was required to be returned for the purpose of taxation under some law of the State.
The proceedings under which the taxes for the years included in this case were charged against the insurance company by the auditor of Franklin County are under a statute (Revised Statutes of Ohio, section 2781a), having for its purpose the correction of returns by those whose duty it was to return
property for taxation, and making correction of returns so as to include property which should have been returned, but had been omitted, by some person charged by law with that duty.
Was it the duty of the insurance company or any one acting for it to return these municipal bonds for taxation? They were required to be deposited under section 3660, Rev. Stat. of Ohio, as amended, which reads as follows:
“Sec. 3660. (Certain companies must make deposit.}-A company incorporated by or organized under the laws of a foreign government shall deposit with the superintendent of insurance, for the benefit and security of the policyholders residing in this State, a sum not less than one hundred thousand dollars in stock or bonds of the United States, or the State of Ohio, or any municipality or county thereof, which shall not be received by the superintendent at a rate above their par value; the stocks and securities so deposited may be exchanged from time to time for other like securities; so long as the company so depositing continues solvent and complies with the laws of this State, it shall be permitted by the superintendent to collect the interest or dividends on such deposits; and for the purpose of this chapter the capital of any foreign company doing fire insurance business in this State shall be deemed to be the aggregate value of its deposits with the insurance or other departments of this State and of the other States of the United States, for the benefit of policyholders in this State or in the United States, and its assets and investments in the United States certified according to the provisions of this chapter; but such assets and investments must be held within the United States and invested in and held by trustees, who must be citizens of the United States, appointed by the board of directors of the company and approved by the insurance commissioner of the State where invested, for the benefit of the policyholders and creditors in the United States; and the trustees so chosen may take, hold and convey real and personal property for the purpose of the trust, subject
to the same restrictions as companies of this State. [91 v. 40; 70 v. 147, § 21; (S. & S. 212).]”
This section is part of the chapter of the Ohio statutes regulating insurance companies other than life. In the same chapter may be found other sections regulating the manner of doing business in Ohio by insurance companies, and in section 3637 we find a provision as to how the capital of domestic insurance companies shall be invested, and such companies are required to invest their capital in certain United States, state, county and municipal bonds, etc. These domestic companies are in like manner required to deposit such securities with the commissioner for the benefit of their policyholders (Rev. Stat. of Ohio, $$ 3593, 3595), and without such deposit are not authorized to do business within the State. As a condition of doing business in Ohio companies organized under the laws of foreign governments are, by section 3660, required to invest a portion of their capital in the stock or bonds of the United States or of the State of Ohio, or some municipality or county thereof, and make deposit of such bonds with the superintendent of insurance for the benefit of local policyholders. Subsequent provisions of the section further show that this deposit is to be regarded as a part of the capital of such foreign insurance company which may be considered in determining the aggregate capital of the company required by law. The companies are permitted to collect the interest or dividends on the securities. These deposits constitute a fund primarily for the benefit of such policyholders, and after their claims are satisfied may be turned over to an assignee or devoted to other purposes. Falkenbach v. Patterson, 43 Ohio St. 359; State v. Matthews, 64 Ohio St. 419.
This statute, therefore, provides for the manner of investment of a portion of the capital stock of a foreign insurance company within the State of Ohio for the protection of the policyholders within the State. It is more than a mere "investment in bonds.” It is also a part of the capital stock required to be deposited as a condition of doing business
within the State and devoted to the benefit of local stockholders.
The authority to enact laws for the imposition of taxes is found in the constitution of the State, Article 12, section 2, which provides: “Laws shall be passed, taxing by a uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise; and also all real and personal property according to its true value in money."
Section 2731 provides, in language similar to that used in the constitution, for the taxation of all property, real and personal, in the State, and all moneys, credits, investments in bonds, stock, or otherwise, of persons residing in the State. This section is found in the first chapter of Title 13, “Taxation,” of the Ohio Statutes, and is in part in the following language:
“SEC. 2731. All property whether real or personal in this State, and whether belonging to individuals or corporations; and all moneys, credits, investments in bonds, stocks, or otherwise, of persons residing in this state, shall be subject to taxation, except only such as may be expressly exempted therefrom; and such property, moneys, credits, and investments shall be entered on the list of taxable property as prescribed in this title.”
The argument for the insurance company is, that this preliminary section, read with the other sections of the Ohio law upon the subject, excludes “investment in bonds” from being embraced in a general description of personal property, and limits their taxation to persons residing in the State, or (under section 2730) where they are held within the State for others by persons residing therein.
Section 2730 of the same chapter is a section giving definitions of terms used in the title. So far as it is pertinent in this connection, that section is as follows: "SEC. 2730.
The terms 'investments in bonds,' shall be held to mean and include all moneys in bonds, or certificates of indebtedness, or other evidences of indebted