O'Brien v. Rockefeller, 239 F. 127

O'Brien v. Rockefeller

239 F. 127 | 6th Cir. | 1917

PER CURIAM.

The single question presented upon this appeal is whether, under a particular statute of Ohio (94 O. F. 162; 3 Gen. Code Ohio, §§ 5373, 5374), taxes could rightfully be exacted of appellee for “moneys invested in bonds, stocks, joint-stock companies, annuities, or otherwise.” The securities themselves,, in respect of which it is sought to exact the taxes, were in New York, not in Ohio, throughout the time in question. The facts upon which the case depends are stated by the District Judge, now Mr. Justice Clarke, in *128His opinion reported in 224 Fed. 541. In view of the learned judge’s treatment of the case, both upon the pertinent facts and the law, an extended opinion here could serve no useful purpose. Upon careful consideration of the evidence and arguments, we are convinced that the trial judge’s analysis of the statute and his conclusion are sound; and, as expressive qf our view of the controlling facts and of some of the reasons why the statute is not applicable to such a situation, we may state:

Indisputably,'when appellee came into Ohio, in June, 1913, he was a bona fide citizen and resident of the state of New York, and in every sense a nonresident of Ohio; he came into Ohio for a purely temporary object and with intent to return to his permanent place of abode, his domicile, in New York, not later than the early part of the following October;' the object of his coming and the intent to"return to his domicile continued, not only to the time so fixed, but throughout his stay in Ohio; and wholly fortuitous circumstances prevented the execution of his abiding intent until shortly after February 3, 1914, the tax-listing day in Ohio.

On its face the statute was not designed to apply to such a case. The statute certainly is not in terms directed against a bona fide nonresident, who never was a resident of Ohio, and who, having a fixed domicile elsewhere, may happen to be in the state for the time and under the conditions here shown; interpreted as an entirety, and in the light of the well-known conditions which gave rise to the statute, as pointed out by Judge Clarke (224 Fed. 553), it is clear that the statute is aimed against citizens of Ohio who, while really domiciled in Ohio, pretend to be domiciled outside of the state; and the circumstance that the appellee, more than a quarter of a century before his sojourn in Ohio for the time here in question, was a citizen and resident of that state, cannot in principle differentiate his situation from what it would be, had he always been a nonresident.

It results that the decree must be affirmed; and, since the appellee has acquiesced in the portion of the decree denying to him relief in respect of his tangible property (i. e., the automobiles), he will recover costs in this court.

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