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"It is further objected that the railroad track, capital stock and franchise is not assessed in each county where it lies, according to its value there, but according to an aggregate value of the whole, on which each county, city and town collects taxes according to the length of the track within its limits." "It may well be doubted whether any better mode of determining the value of that portion of the track within any one county has been devised, than to ascertain the value of the whole road, and apportion the value within the county by its relative length to the whole." "This court has expressly held in two cases, where the road of a corpora tion ran through different States, that a tax upon the income or franchise of the road was properly apportioned by taking the whole income or value of the franchise, and the length of the road within each State, as the basis of taxation. Delaware Railroad Tax, 18 Wall. 206; Erie Railroad v. Pennsylvania, 21 Wall. 492." 92 U. S. 608, 611.

So in Western Union Telegraph Co. v. Attorney General of Massachusetts, 125 U. S. 530, this court upheld the validity of a tax imposed by the State of Massachusetts upon the capital stock of a telegraph company, on account of property owned and used by it within the State, taking as the basis of assessment such proportion of the value of its capital stock as the length of its lines within the State bore to their entire length throughout the country.

Even more in point is the case of Marye v. Baltimore & Ohio Railroad, 127 U. S. 117, in which the question was whether a railroad company incorporated by the State of Maryland, and no part of whose own railroad was within the State of Virginia, was taxable under general laws of Virginia upon rolling stock owned by the company, and employed upon connecting railroads leased by it in that State, yet not assigned permanently to those roads, but used interchangeably upon them and upon roads in other States, as the company's necessities required. It was held not to be so taxable, solely because the tax laws of Virginia appeared upon their face to be limited to railroad corporations of that State; and Mr. Justice Matthews, delivering the unanimous judgment of the court, said:

"It is not denied, as it cannot be, that the State of Virginia has rightful power to levy and collect a tax upon such property used and found within its territorial limits, as this property was used and found, if and whenever it may choose, by apt legislation, to exert its authority over the subject. It is quite true, as the situs of the Baltimore and Ohio Railroad Company is in the State of Maryland, that also, upon general principles, is the situs of all its personal property; but for purposes of taxation, as well as for other purposes, that situs may be fixed in whatever locality the property may be brought and used by its owner by the law of the place where it is found. If the Baltimore and Ohio Railroad Company is permitted by the State of Virginia to bring into its territory, and there habitually to use and employ a portion of its movable personal property, and the railroad company chooses so to do, it would certainly be competent and legitimate for the State to impose upon such property, thus used and employed, its fair share of the burdens of taxation imposed upon similar property used in the like way by its own citizens. And such a tax might be properly assessed and collected in cases like the present, where the specific and individual items of property so used and employed were not continuously the same, but were constantly changing, according to the exigencies of the business, In such cases, the tax might be fixed by an appraisement and valuation of the average amount of the property thus habitually used, and collected by distraint upon any portion that might at any time be found. Of course, the lawlessness of a tax upon vehicles of transportation used by common carriers might have to be considered in particular instances with reference to its operation as a regulation of commerce among the States, but the mere fact that they were employed as vehicles of transportation in the interchange of interstate commerce would not render their taxation invalid." 127 U. S. 123, 124.

For these reasons, and upon these authorities, the court is of opinion that the tax in question is constitutional and valid. The result of holding otherwise would be that, if all the States should concur in abandoning the legal fiction that personal property has its situs at the owner's domicil, and in adopting the system of tax

ing it at the place at which it is used and by whose laws it is protected, property employed in any business requiring continuous and constant movement from one State to another would escape taxation altogether.

Judgment affirmed.

MR. JUSTICE BRADLEY, with whom concurred MR. JUSTICE FIELD and MR. JUSTICE HARLAN, dissenting.

EVIDENCE OF DOMICIL.

FIRTH v. FIRTH, 50 N. J. EQ. 137, (1892).

On ex parte hearing on petition, master's report and proofs taken before a master.

Mr. Silas W. De Witt, for petitioner.

VAN VLEET, V. C.

This is a suit for divorce by a husband against his wife for adultery. The crime charged has been proved. If the only ques tion presented was whether or not the defendant's guilt had been established, the case could very easily be decided. But it presents another and much more troublesome query, namely: Had the petitioner, when he brought his suit, a right to sue for a divorce in this state? or, stated in another form, Has this court power, on the facts of the case as they appear in the proofs, to dissolve his marriage with the defendant? The decisive question of the case is one of jurisdiction.

The parties were married in Iowa. Though they lived together as husband and wife for nearly three years—from June 13th, 1886 (the date of their marriage), until May, 1889-they were never, during that period, in this state, either together or separately. The adulterous acts proved were committed in Chicago, Illinois. The defendant has been proceeded against as an absent defendant, resident in Illinois, and has been brought into court by notice published and served through the mail as required by the usual order of publication. Under this state of facts it is manifest that the only ground of jurisdiction on which a decree in favor of the petitioner can rest is, that he was a resident of this

state, having his domicil here when he brought this suit. It is only on the ground that he is a citizen of this state, and as such entitled to the rights and remedies which its laws confer, that this court may, in the rightful exercise of its powers, ascertain, fix and declare his matrimonial status. The rule of jurisdiction in such cases was defined by Chancellor Zabriskie, in Coddington v. Coddington, 5 C. E. Gr. 263, 264, as follows: "Proceedings with regard to the validity or dissolution of marriage are, as was held in the celebrated case of the Duchess of Kingston, proceedings in rem. They actually operate upon the matter; they affirm, constitute or dissolve the marriage relation. By the well-settled principles of the jus gentium, or rules acknowledged by the codes of all civilized nations, and given effect by comity of law when not controlled by positive enactments, the position and relative status of every person is regulated by the law of his domicil." The domicil of origin is retained until another is acquired. After a person has abandoned his domicil of origin, his domicil will be considered to be in that place in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with a present intention of making it his home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home. Harral v. Harral, 12 Stew. Eq. 279, 285.

The controlling question of the case then is, Was the petitioner a citizen of this state, having his domicil here, when he brought this suit? His petition was sworn to at Salt Lake City, Utah, on the 22d day of October, 1891, and filed on the 31st day of the same month. The first evidence he gave in the case as a witness was given at the same place on the 19th day of March, 1892, under a commission issued by this court. The reason he assigned in his affidavit to obtain the commission, why he could not give his evidence in this state, was that he was then located in Salt Lake City in connection with the Denver and Rio Grande railroad, and it was, consequently, impossible for him to leave the west and come east, and he was unable to say when he could get away from his work, which at that time confined him there. In giving his evidence under the commission, in reply to an interroga

tory put to him in these words, "Where is your place of residence, and how long have you resided there?" he said, "Phillipsburg, New Jersey; I have resided there since 1863." When the case was first presented for consideration, the above question and answer embraced all the evidence there was going to show where the petitioner was domiciled when he brought this suit. As it was manifestly insufficient to prove the only fact which authorized the court to take jurisdiction of the suit, being, when viewed in its legal aspect, simply the statement of a conclusion, unaccompanied by the specification of a single fact tending to show that it was well founded, the petitioner was given leave to take further evidence. Since then he has returned to this state, and has been further examined on the matter under consideration. He gave his evidence before the special master to whom the cause had been referred to take proofs and make a report.

From the proofs now in the case, it appears that the petitioner was born at Phillipsburg, in this state, about 1863, and continued to live there until 1884, when he left and went to Nebraska, and afterwards to the Bermuda Islands, and remained absent until the early part of 1885. He then returned and remained here for a short time, but left again in the spring of 1885 and went to Nebraska. His father died of phthisis or consumption over twenty years ago. This disease is supposed to be hereditary in the family. Up to the time the petitioner left in 1884 he had been a member of his mother's family, living with her in the homestead house, where she and her husband had lived up to the time of his death, and where she continued to live with her children after her husband's death. The petitioner, it will be observed, had attained his majority shortly before he left in the spring of 1885. He went away then, he says, on account of his health-in search of a climate less dangerous to a person predisposed to pulmonary diseases than that of this state. From the spring of 1885 he was continuously absent from this state and in the west, at Omaha, Denver, and Salt Lake City, until December, 1890. For the major part of this period, I judge from his evidence, he was employed as a clerk in the auditor's department of the Denver and Rio Grande Railroad Company. He says he was so employed for a year in Den

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