Page:Harvard Law Review Volume 32.djvu/643

JURISDICTION TO TAX 607 residence of the owner,^^ though the certificate of stock is kept outside the state,®^ and even though it may be held by a trustee in another state in pledge; ^^ but stock in a foreign corporation owned by a nonresident is not taxable.®^ A bank deposit is, strictly speaking, a mere debt, due from the bank to the depositor; as a mere chose in action it is without actual situs, and in accordance with general principles it should be in- cluded in the tax paid by the depositor at his domicile. This has often been held;^" and the state where the bank is situated has for the same reason refused to tax the deposit.^°^ The opposite doctrine was, however, laid down in New York. In Matter of Houdayer ^°^ a bank account of a nonresident was taxed; either because it was property there situated, or because it was an intangible especially protected there. Judge Vann in the course of his argument said : "While the relation of debtor and creditor technically existed, prac- tically he had his money in the bank, and could come and get it when he wanted it. It was an investment in this state, subject to attachment by creditors. If not voluntarily repaid, he could compel payment through the courts of this state. The depositary was a resident cor- poration, and the receiving and retaining of the money were corporate acts in this state. Its repayment would be a corporate act in this state. Every right springing from the deposit was created by the laws ^' Wright V. Louisville & N. R. R., 195 U. S. 219 (1904); San Francisco v. Flood, 64 Cal. 504, 2 Pac. 264 (1884); Lockwood v. Weston, 61 Conn. 211, 23 Atl. 9 (1891); Greenleaf v. Board of Review, 184 111. 226, 56 N. E. 295 (1900); Seward v. Rising Sun, 79 Ind. 351 (i88i); Morril v. Bentley, 150 la. 677, 130 N. W. 734 (1911); Bellows Falls Power Co. v. Commonwealth, 222 Mass. 51, 109 N. E. 891 (1915); Bacon v. State Tax Commissioners, 1 26 Mich. 22, 85 N. W. 307 (1901) ; Worthington v. Sebastian, 25 Ohio St. (1874); Bradley v. Bauder, 36 Ohio St. 28 (1880); Dupuy v. Johns (Pa.), 104 Atl. 565 (1918). Contra, People v. Commissioners, 5 Him (N. Y.) 200 (1875); afl&rmed 64 N. Y. 541 (1876). " Stanford v. San Francisco, 131 Cal. 34, 63 Pac. 134 (1900); Crosby v. Charlestown (N. H.), 95 Atl. 1043 (1915); Commonwealth v. Williams, 102 Va. 778, 47 S. E. 867 (1904). " Central of Georgia Ry. v. Wright, 166 Fed. 153 (1908); appeal dismissed, 215 U. S. 617 (1909). »» Matter of James, 144 N. Y. 6, 38 N. E. 961 (1894); Matter of Bishop, 82 App. Div. 112, 8r N. Y. Supp. 474 (1903). "' Hunt V. Turner, 54 Fla. 654, 45 So. 509 (1907); Home v. Greene, 52 Miss. 452 (1876). 1" Pyle V. Brenneman, 122 Fed. 787 (1903); State v. Clement Nat. Bank, 84 Vt. 167, 78 Atl. 944 (191 1); Pendleton v. Commonwealth, no Va. 229, 65 S. E. 536 (1909). '<» ISO N. Y. 37, 40, 44 N. E. 718 (1896).