Concurring Opinion ok
Dole, J.The question before the Court is, whether the property in question had a situs within the Kingdom for taxable purposes. It may fairly be implied, as stated by the Opinion of the Court, that it belonged to the plaintiffs.
I should have cheerfully followed the majority of the Court had they seen their way to have decided the case in favor of the plaintiff's, under the authority of Hoyt vs. The Commissioners of *672Taxes, 23 N. Y., 240, and Carrier vs. Gordon, 21 Ohio, 608. The conclusion of Hoyt vs. The Commissioners of Taxes is, that “ chattels which are in transit through the State * * * ought not to be considered as having a situs here, so as to be subject to taxation.” Carrier vs. Grodon is still stronger and more applicable to the case at bar. It says : “ 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 transitu either through the State or from a point in the State to a point outside the State, it is not to be regarded as property in the State within the meaning of the statute, but as property belonging to the place of its destination.” And again : “The safer and better rule is the one indicated, to consider property actually in transit as belonging to the place of its destination, and property not in transit as property in the place of its situs, without regard to the intention of the owner or his residence in or out of the State.”
The laws in New York and Ohio are identical with ours, so far as this point is concerned. “All lands and all personal estate within this state * * * shall be liable to taxation.”, (1 R. S., N. Y., 387, Sec. 1.) “All property, whether real or personal, in this state * * * shall be subject to taxation.” (1 R. S., Ohio, Sec. 2731.) “All personal property within this Kingdom, not subject to specific taxes, shall be subject to an annual tax of one per cent.” (Hawn. Laws of 1886, Chap. XXXII.)
It will be seen that the opinion in the case of Carrier vs. Gordon, above quoted, exactly fits the case before the Court. The circumstance of the sugar belonging to resident owners does not affect the case under our law or either of thé laws above quoted; the property is liable to taxation if it is within the Kingdom on the 1st day of July, regardless of the residence of the owners. This sugar started for its destination (San Francisco) on the 30th day of June, and the vessel upon which it was shipped was compelled by unfavorable winds to anchor again, and to remain at anchor until the morning of the first *673day of July. The sugar was actually in transit all that part of July 1st, during which it was within Hawaiian limits, as much so as if the vessel in which it was had not dropped anchor, but had been becalmed within a maritime league from the shore-until July 1st.
I feel that these cases lay down a convenient rule, and one entirely within the statute. The case of Brewer & Co. vs. Tax Collector, even if it had been decided by the Full Court, would not have controlled the case at bar, the circumstances being different, in that the vessel on which the sugar had been placed had not left her moorings before the first day of July.
At the same time, the construction of the law adopted by the Court is, I think, conformable to the statute; the question between the two views is one rather of policy than of exact law. Feeling, therefore, that the Court was at liberty to adopt the rule laid down in its opinion, I very reluctantly concur therein.