delivered the opinion of the court.
This is a proceeding to recover back-taxes on personal property of the plaintiff in error, hereafter called the defendant. He pleaded that he did own certain barrels of whiskey which he did not list for the years in question, but that he had exported them to Bremen and Hamburg, in Germany, for sale abroad, and that the State was forbidden to tax them, both becаuse they were exports, U. S. Const., Art. I, § 10, and because their permanent situs was outside the State. Fourteenth Amendment.
Delaware, Lackawanna & Western R. R. Co.
v.
Pennsylvania,
We think that we have stated tne effect of the pleadings fairly, and it will be observed that the plaintiff’s claim was of a right, to tax thе whiskey* the warehouse receipts being mentioned only to -corroborate the plaintiff’s contention as to the true domicil of the goods. After the decision, the amount of. whiskey fоr which the defendant held German warehouse receipts at the material times and the value of the whiskey were agreed, and thereupon the court, reciting the agreement, dirеcted a judgment for .taxes due upon the warehouse receipts, valuing them at the agreed value “per barrel of whiskey embraced in them.”' So that it will be seen that the effect is the same as if the whiskey itself had been taxed, and the question is'whether, by such a dislocation of the documents from the things they represent, a second property of equal value is erе-, ated for taxing purposes, which can be reached.,although the first could n<?t. Possibilities similar in economic principle sometimes Have to be, or at least have been, recognized, but di course, economically speaking, they are absurd.
We are dealing with German receipts, and therefore we are riot called' upon ;to consider the effect of statutes purporting to make such instrurrients negotiable. Bonds can be taxed where they are permanently kept, because by a notion going back to very early law the obligation is,, or originally was, inseparable from the paрer or parchment which expressed it.
Buck
v.
Beach,
The form of the receipts given in Germany does not appear. It does not appear that they contained any assent to transfer, unless by conjecture from the defendant’s testimony that he pledged them for loans. Even that conjecture is made more doubtful, if not excluded, by the findings of the lower cоurts. It does not appear that the Court of Appeals made a different finding if it had the power to do so. This court can make none. There is no presumption that we know of that thе transactions took one form or had one effect rather than another.
We can think of but two ways in which the receipts could amount to more than a mere convenience for getting quasi-possession of the goods. In the first place, they might express or imply a promise to be answerable, or carry a statutory liability, for a corresponding amount in сase the property referred to was delivered to another without a surrender of the receipts. See
Mechanics’ & Traders’ Ins. Co.
v.
Kiger,
In the second place, the receipt might be made the representative of the goods in a practicаl sense. A statute might ordain that a sale and delivery of the goods to a purchaser without notice should be invalid as against a subsequent bona fide purchaser of the receipt. We need not speculate as to how the law1 would deal with it in that event, as we have no warrant for assuming that the German law gives it such effect. On the facts before, us, and on any facts that the Court оf Appeals can have, had before it,, the receipts cannot be taken to have been more than one of several keys to the goods;' It cannot be assumed that a good title to the whiskey could not have been given .while the receipts were outstanding. We assume that they made it very unlikely that it would be, but the practical probability does not make the instrument the legal equivalent of the goods. We take it to be almost undisputed that if the warehouses were in Kentucky the State would not and could not tax both the whiskey and the receipts, even when issued in Kentucky form, and that it would recognize that the only taxable object was the whiskey. The relation of the paper to the goods is not- changed by their being abroad, and the only question in,the case is whether the paper can be treated as property equivalent in value to the goods, because in some way it represents them.
We statе the question as we have stated it because that is the one that is raised by the decision under review. It would be a mere quibble to say that the receipts, as paper, had an in
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finitesimal value, that they acquired a substantial one, although much less than that of the whiskey, because of their practical use, and that this court is not concerned with a mere overvaluаtion. The tax is imposed on the theory that the receipts are the equivalents of the goods and are taxable on that footing, although the goods cannot be taxed. Assuming, as the Cоurt of Appeals assumed, that the whiskey is exempt under the Constitution of the United States, we are of opinion that the protection of the Constitution extends to warehouse receipts locally present within the Staté. What was said by Chief Justice Taney about bills of lading applies to them,
mutatis mutandis:
“A duty upon that is, in substance and effect, a duty on the article exported.”
Almy
v.
California,
Judgment reversed.