*1 (No. 23867. Lovejoy & Co. Inc. vs. Appellant,

Wheelock, Joseph L.

Gill, County Collector, Appellee. Opinion February Rehearing denied June filed J.,

Wilson, dissenting. McCormick Williamson, & Adams, (Robert Nelson appellant. counsel,) Paul Davis, Adams, N. Attorney, (Hayden State’s Courtney, Thomas J. of coun E. Co wen, berg, Manuel Bell, Sham Jacob for appellee. sel,) the court: the opinion delivered Orr

Mr. Justice the taxation Illinois authorize laws of revenue theDo aof intangibles and other the net credits of -a portion court circuit from This appeal corporation? raises no question. licensed a Massachusetts The appellant, a branch has maintained to do taxes upon paid It has regularly for many years. Chicago includ- State, used all located and tangible property In preparing *2 merchandise. and machinery, equipment ing books for the assessor county the assessment each $10,000 two additional assessments of county placed It was and “franchise.” against on its credits appellant Massachu- that if net credits solely stipulated $10,000, setts assessable the assessment of of the was the fair cash value judgment assessor, “of that and of the net credits out of arising pro- portion duced office of Chicago complainant corporation.” In at the value of this so-called “franchise” arriving a used a to which earnings assessor weighted average was and to this value applied factor applied, capitalization county the ratio of Cook appellant’s a factor representing This in the United to its total business States. an assess- the assessor as denominated by assessment was and “franchise” of the corporation, ment against judg- in the assessor’s consisted, that it further stipulated pat- trade-marks, copyrights, of the “of that ment, franchise and earning power will, ents, capitalized good of the office on the basis propor- the Chicago to allocated at the use of said intangibles tion of business produced corporation.” officeof complainant the Chicago sales out of appellant’s shows The evidence $180,000, total of about $1,100,000, of approximately was cent, sixteen per credit, and approximately cash both A small bank account office. the Chicago through as a cash ac- branch petty the Chicago at maintained or other activities from sales arising all bills count, at the home office office were payable Chicago from sales aris- All invoices Massachusetts. Cambridge, to a direction pur- contained Chicago through ing chasers to “send all to street, remittances Cam- Sidney bridge, Massachusetts.” Appellant paid Secretary the usual fee State required for admission cor- of a foreign and poration the usual tax Busi- required ness Corporation act from all admitted foreign corporations to do business in Illinois. For the it was also year 1934 assessed the sums of machinery equipment $929 and $21,910 for merchandise on hand. The suit in the lower court was a to equity enjoin proceeding collector from the additional tax on collecting intangibles, suit was there dismissed for want of equity. General Assembly levy general taxes in this in section of article found “The Illinois Gen- constitution, provides: eral shall revenue as be need- such Assembly provide ful by so that levying tax, by valuation, person every a tax in shall to the value of pay proportion * * * her but the or its General his, property; Assembly * * * have tax shall power persons *3 and in such manner owning franchises using privileges, it shall from time to time direct uniform by general law, as the it class as to operates.” the act section 1 of Revenue of the By General 1872 for has the taxation of the Assembly provided following : property All and in this

“First: real personal State. property bonds and All or stocks moneys, “Second: the shares of stock of investments, incorporated companies and all other associations, includ- personal property; transitu to this State, used, in or from held, ing property in residing or controlled this State. persons owned stock of of banks and “Third: The shares bank- capital in this doing State. companies ing “Fourth: The associa- capital companies etc. under the laws of this State,” tions incorporated

381 The first 1 section provision relates to of real and be as personal property regarded broad enough cover all character, property every tangible intangible, National (People Box Co. Ill. 141; Union People Chicago Works Lime 248 id. second sub 304.) express provision it is, division that not if taxed, shall be personal property is held, used or if it is owned “used, held this but or controlled this persons residing By State.” maxim mobilia followed the has provision legislature fol situs of sequunt personam personal —that the common This was lows domicile of owner. by many rule, and been recognized law its have principles Borden, re of this court. (In Appeal decisions Thornton, Mills v. id. 548; Ellis 369; Carr, Central Co. v. id. 172; Railroad id. Illinois 300; said Illinois Thus, id. Culver, 566.) People rule, “As a Carr, general Co. v. supra: Central Railroad but accom locality no has personal property incorporeal But that he goes. wherever owner person panies for conveni a rule of the common law merely adopted and it bemay legislature ence, only, changed situs of of its The actual judgment. personal exercise will deter a visible and existence having tangible it be taxed without town or district in which may mine the owner, intangible domicile of the prop reference statute, of a taxation, absence purpose erty domicile.” This rule to be situated at such held is generally to the taxa when acceptance applied unqualified has won Silberman, U. S. Blodgett of intangibles. tion Missouri, 281 id. Baldwin v. 10; the argument appellee unable are accept We *4 Revenue act is broad in enough section the language owned cover intangible property of its based trade- Massachusetts, in marks, earning copyrights, patents, good will, capitalized used power thus a permitting por tion of its business the use of these produced by intangi bles to be taxed in The doctrine that intangibles be at their location,” taxed “business as distinguished from the domicile of their has owner, found legal general has never to a kind been case of the acceptance, applied been to obli before us. This doctrine has usually applied in the course a localized gations to pay money, acquired Fox, 212, U. Corp. Steel business, (Wheeling S. shares of and to because corporate which, 213,) treated- as owner, their in the business of bemay use at the of business. taxation, purposes localized, place (F Maine, Bank Nat. U. 312, 331; S. irst First Minnesota, ed.) Bank Stock U. Corp. (L. none, No case has 644.) been and we have found cited, which extends this doctrine to net credits and franchises can a No statutory corporation. provision specific of such be found which would the imposition warrant nor in the Revenue act tax, any used language doubt such can be If there is any fairly implied. authorize whether act was intended to an language be will not of certain language make the its clear order to extended beyond import In case of stat tax. doubt such subject utes are most strongly against construed government Co. Board Re Fidelity tax-payer. favor of fire view, Ill. that credits holding have been cited by appellee

No cases to such to a non-resident a resident owed are taxable here. The of this outside non-resident cited by ap Matzenbaugh case of is not in as the of net subject point, on the pellee in the hands an who agent involved there credits in Illinois and kept on money-lending carried lili- indebtedness notes evidencing

383 re expressly sec. 6,) act of 1872, nois statute (Revenue car who of an agent that held in the hands quires be taxable shall of money lending ries on the business was it Ill. 25, People, v. Likewise, Goldgart York of residents New held held by that credits owned and were loans taxable in Illinois even though were not Ill. Davis, People in Illinois. To the same effect are In other cases Reat 201 id. 272, 469. In In re Appeal

court has adhered to the same principle. at 351, Union Tank Co. Ill. 347, page Line Its Jersey. is New said: “Appellant’s principal itsAll returned to that when not in are State. cars, use, office, from that business affairs are and managed regulated minor some the mere the cars and matter except tracing fact, office, and, details. Bills due it are that at payable Its its domicile is in the Jersey. personal State New to subject has its there and is there situs that by that in return for afforded protection State * * * That appellant’s to company. State not which it is at its home office in disputed payable New are not to settled here, assessment Jersey, subject Review, case of Board Ill. Scripps 278, and cases cited.” of the sales or though Even other transactions occurred in it is shown clearly The mere are outside of this credits State. in Illinois is not basis taxation. credits arose fact that In Review, Board Western supra.) Co. v. (Fidelity of Lieb, an 172, Telegraph attempt Union and franchise of a stock corpora tax the capital made to under the but incorporated tion doing then This court held that (1875) of another laws restricted assessment capital had legislature under the created laws of this those solely to tax “If shall be thought necessary added: it State, their than tangible otherwise prop- such corporations erty, additional legislation expressly authorizing such taxa- tion must be had.”

Much reliance is placed appellee holding Adams Express Ohio, Co. v. 166 U. People Ford Motor Co. 188 Cal. Pac. In the Adams Express Co. case the Federal Court Supreme specifically pointed out that the question before it was limited constitutionality of the Revenue act Ohio, (Nichols under which law,) the assessments the franchise against *6 were made. As stated in its opinion, Supreme Court there assumed that the assessments of were complained to the rules of pursuant established appraisement law Nichols as construed Supreme Court of Ohio, question was whether the Nichols law was valid under Federal constitution. In the Ford Motor case, Court supra, Supreme California like wise with concerned of a validity California statute which authorized the assessment of all franchises, whether exercised a domestic or corporation “by under the laws of other incorporated any country.” Neither these decisions is therefore controlling as statute case, there is no the assess present authorizing intangibles ment of or franchises acted assessor that the It opinion is our the cred- a tax upon in assessing statutory without of the appellant intangible property its, corporation. reversed is therefore court of the circuit decree an injunc- grant directions to with remanded,

the cause tax in question. the collection tion against directions. with remanded, Reversed dissenting. Mr. Justice Wilson,