dissenting:
I am unable to concur in the opinion and judgment of the court in this case and believe that its importance and far-reaching effect warrant a statement of the grounds upon which I differ.
Before stating the view which it seems to- me should be-controlling I believe that the statement of facts, as outlined by the learned justice speaking for the court, should be somewhat amplified with a view to a more complete showing of the case.
The office in Lafayette, Indiana, was the office, of Nash, for which he paid the rent. The safes in which the notes were kept in this office were the safes of Nash, and the power of attorney under which the agent held the “Ohio notes” not only authorized him to enter satisfaction of them When paid, but gave him complete control and dominion over them with power of sale. And while it does not clearly appear that the proceeds of the notes in question were reinvested by the agent in Indiana, it does appear that after 1886 large sums of money were sent from Cincinnati to Lafayette and were invested by Nash’s agent in Indiana. Furthermore, in the opinion it is said that the executors, subsequently to the death of Nash, paid over $40,000 of taxes on money invested in Ohio. It does appear that after the death of Nash, under the Ohio law the auditor of Hamilton County instituted a proceeding for the collection of five years (of the thirteen here involved) of back taxes upon some of the notes representing the Ohio invéstments, and rather than litigate, a settlement was made *410by the executors for this five years’ claim in the sum of $40,000. 'Whether that was for the notes here in question the record does not disolose. As the Ohio agent testified, only a part of the Ohio notes were sent to Indiana, and others in large amounts were .kept in Ohio. We know of no statute in Ohio which would tax the notes permanently kept in Indiana, and none is pointed out. The Supreme Court of Indiana in this case reached the conclusion that these particular notes were not taxable in Ohio. Of course the settlement of the' claim could not affect the legal proposition here involved, but for accuracy of statement it must not be regarded that equitably the claim for taxes upon these notes has been satisfied. On the contrary, this record discloses that by the scheme adopted more than three-quarters of a million of dollars in capital invested in notes and mortgages successfully evaded taxes during Nash’s lifetime in New York, where he was domiciled, and in Ohio and Indiana, where his agents were loaning his money for him and where his notes and mortgages, the results of such loans, were held for him.
Accepting the decision of the Supreme Court of the State that a statute of the State has undertaken to tax these notes, it is now held that the Constitution of the United States prevents such taxation of notes and mortgages held under the protection and within the power of the State by the agent of a non-resident owner, although such agent holds the securities in an office belonging to the owner, in a safe provided by him, with a power of attorney which gives him full dominion over them, and for the convenience of the owner keeps a book in which transactions concerning them are recorded at the instance of the owner, and sends them out for collection. These notes were sent beyond the. borders of the State of Indiana only for collection, or for the few days when they were supposed to be liable for taxation, and, when such danger was thought to be past, returned to the agent in Indiana.
I agree that a debt, intangible in form cannot acquire a situs for the purpose of taxation, but I submit that when a *411debt takes thé shape of nóte and mortgage it may, if the State, in the exercise of its taxing, power so wills, acquire- a situs separate- from the domicil of the owner under the circumstances shown in this case. I concede that the precise point here involved has not been decided in- previous cases in this court, but in my view, the principles declared in this court were followed in the .Supreme Court of-Indiana and require the affirmance of its judgment. -
This court in a series of cases has held that notes, bonds and mortgages may acquire a situs at the place where they are held. Some of the cases are: 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; Scottish Union & Nat. Ins. Co. v. Bowland, 196 U. S. 611.
It would unnecessarily extend this dissent to analyze these cases. Brief reference to some of them, in my judgment, shows that the principles therein declared, when .extended to this, case, would warrant the State, if it so chose in exerting its taxing power, to reach notes and mortgages, held within its jurisdiction under the circumstances which we have detailed.
In New Orleans v. Stempel, 175 U. S. 309, a tax on credits evidenced by notes and secured by mortgages was upheld, where the owner left.them, in Louisiana in the possession of an agent who collected the same as they fell due. . There was no fact of investment and reinvestment of capital in the case, and the court, speaking through Mr. Justice Brewer, said:
“This matter of situs may be regarded in another aspect. In the absence of statute, bills and notes are treated as choses in' action and are not subject to levy and sale on execution, but by the statutes of many States they are made so subject to seizure and sale as any tangible personal property. 1 Freeman on Executions, § 112; 4 Am. and Eng. Enc. of Law, 2d ed., 282; 11 Am. and Eng. Enc. of Law, 2d ed., 623. Among the States referred to in these authorities as having statutes war*412ranting such levy and sale are California, Indiana, Kentucky, New York, Tennessee, Iowa, and Louisiana. Brown v. Anderson, 4 Martin (N. S.), 416, affirmed the rightfulness of such a levy and sale. In Fluker v. Bullard, 2 La. Ann. 338, it was held that if a note was not taken into the actual possession of the sheriff a sale by him on an execution conveyed no title on the purchaser,' the court saying: In the case of Simpson v. Attain, :it was held that, in order to make a valid seizure of tangible property, it is necessary that the sheriff should take the property levied upon into actual possession.’ 7 Rob. 504. In the case of Gobeau v. New Orleans & Nashville Railroad Company the same doctrine is still more distinctly announced. The court there says: From all the. different provisions.of our laws above referred to, can it be controverted that, in order to have them- carried into effect, the sheriff must necessarily take the property seized into his possession? This is the essence of the- seizure. It cannot exist without such possession.’ 6 Rob. 348. It is clear, under these authorities, that the sheriff effected no seizure of the note in controversy and consequently-his subsequent adjudication of it conferred no title on Bailey.
''The same doctrine was reaffirmed in Stocto v. Stanbrough, 3 La. Ann. 390. Now if property can have such a situs within the State as to be subject to seizure and sale on execution, it would seem to follow that the State has power to establish a like situs within the State for-, the purposes of taxation. It has also been held that.a note may be made the subject of seizure and delivery in a replevin suit. Graff v. Shannon, 7 Iowa, 508; Smith v. Eals, 81 Iowa, 235; Pritchard v. Norwood, 155 Massachusetts, 539.
''It is well settled that bank bills and municipal bonds are in such a concrete tangible form that they are subject to taxation where found, irrespective' of the domicil of the owner, are subject to levy and sale bn execution and to seizure and delivery upon replevin; and, yet, they are but promises to pay, evidences of existing indebtedness. Notes' and mortgages are of. the samé nature; and, while, they may not have be*413come so generally recognized as tangible personal property, yet they have such a concrete form that we see no reason why a State may not declare that, if found within its limits, they shall be subject to taxation.”
In commenting on this case and State Assessors v. Comptoire National &c., 191 U. S. 388, Mr. Justice Moody, speaking for' the court in the late case of Metropolitan Life Ins. Co. v. New Orleans, 205 U. S. 395, said: “In both of these cases the written evidences of the credits were continuously present in the- State, and their presence was clearly the dominant factor in the decisions.”
In Blackstone v. Miller, 188 U. S. 206, Mr. Justice Holmes, speaking for the court, said:
“There is no conflict between our views and the point decided in the case reported under the name of State Tax on Foreign-held Bonds, 15 Wall. 300; 21 L. ed. 179. The taxation in that casé was on the interest on bonds held out of the State. Bonds and negotiable instruments are more than merely evidences of debt. The debt is inseparable from the paper which declares and constitutes it by a tradition which comes down from more archaic conditions. 177 Massachusetts, 335, 337.”
To the consideration of the subject in the opinions of the' learned justices just quoted, it may be added that bills and notes are the subject of conversion in trover, and the measure of damages is the collectible value of the obligation. Mercer v. Jones, 3 Camp. 477; 2 Ames on Bills and Notes, p. 693, and numerous cases there cited. Bills and notes may be .the subject of donatio causa, mortis, even though payable to order and unendorsed. 2 Ames’ Bills and Notes, 699-701. They are held to be governed by the designation of “goods and chattels” in the statute of frauds and other statutes. 2 Anies’ Bills and Notes, 706.
. Bills and jiotes have been held to be “goods, wares and merchandise” within the meaning of the statute of frauds. Baldwin v. Williams, 3 Met. 365; Somerby v. Buntin, 118 Massachusetts, 279.
*414In view of this recognition of the character of bills and notes as tangible property, it seems to me inaccurate to say that they are'mere evidences of debt. They are tangible things, capable of delivery; passing from hand to,hand, and for many purposes may be regarded as of the value of the debt which they evidence.
It is elementary that the power of the States as to matters of taxation is very broad, and subject only in the limitation of its exercise to the constitution of the' State and the Nation.
It seems to me that a State, in pursuance of its taxing policy, may give a situs to such evidences of debt held .within its jurisdiction as have taken the tangible form of bonds, notes and mortgages.
It is said to deny this power to the States, under the. circumstances of this case, will tend to prevent double taxation— a thing much to be desired. This case seems to me an apt illustration of the contrary view, by denying the power to Indiana to tax these notes under the circumstances shown, the scheme of the owner to avoid any tax upon them is made effectual, and, except for the recovery after his death for a small part of the taxes actually due, this vast sum of money escapes taxation altogether. I think that the powers of taxation here invoked by the State of Indiana ought not to be denied, and if the practical effect can be given any weight in deciding legal rights, to me it seems evident that such denial will work immunity from just taxation of property represented in promissory notes and mortgages sent beyond the jurisdiction' of the State where the owner is domiciled and held by agents in distant States within the protection of their laws, for the sole purpose of avoiding contribution to the public treasury. As I.understand the opinion, municipal bonds, or other such securities held as these are, would be legitimately subject to taxation. They are but promises to pay in a concrete form of the same character as notes and mortgages,. In my opinion there is no constitutional objection to their localization for *415taxation by the law of the State when the owner has chosen to give them a situs there as in this case.
Without further extending these views, I am constrained to dissent from the opinion and judgment of the court in this case;
Mr. Justice Brewer concurs in this dissent.