of administration out of assets of the estate within the jurisdiction of the probate court. This was so notwithstanding the domicil of the testatrix and of her executor was in the state of New York; that that was the place of principal administration; and that the person charged therewith was the same. Aspden v. Nixon, 4 How. 467, 11 L. ed. 1059; Johnson v. Powers, 139 U. S. 156, 159, 35 L. ed. 112, 113, 11 Sup. Ct. Rep. 525.

Our jurisdiction by direct appeal is invoked on the ground that the application of the Constitution of the United States was involved, and that a law of the state was "claimed to be in contravention of the Constitution of the United States."

The objections of the executor to the al[140]lowance of the claim, *and his answer, put forward the deprivation of property without due process of law, the abridgment of privileges and immunities of citizens of the United States, and the denial of the equal protection of the laws, as the violations of constitutional safeguards relied on. Of these the first only is pressed upon our attention and needs to be considered, and that raises the question whether the laws of the state of Minnesota, as expounded by the supreme court of that state, in authorizing this judgment, amounted to the taking of property without due process of law.

question in the case was whether credits due to a resident of another state, from residents within Minnesota, for moneys loaned and invested by, and which credits were managed and controlled by, an agent of the creditor, resident within Minnesota, could be taxed in Minnesota under existing statutes, and the court held that they could. The court, after referring to the provisions of the statute that all personal property in the state was subject to taxation, and that all moneys and credits should be listed by the owner or his agent, where one or the other resided, said: "It is to be taken, therefore, as the intent of the statute, that credits, to whomsoever owing, are taxable here if they can be regarded as personal property in this state; that is, situated in this state. To justify the imposition of tax by any state, it must have jurisdiction over the person taxed, or over the property taxed. As Jefferson was not a resident of this state, there was no jurisdiction over him. But if the property on account of which these taxes were unpaid was within the state, the state had jurisdiction to impose them as it might impose a tax upon tangible personal property permanently situated here, and to enforce the taxes against the property. The authorities which we cite, in support of the proposition that the credits taxed had a situs here, fully sustain this. In the course of the administration of the For any purposes the domicil of the ownestate of Cyrus Jefferson, deceased, in theer is deemed the situs of his personal properprobate court of the county of Washington, ty. This, however, is only a fiction, from Minnesota, a claim was presented in March, motives of convenience, and is not of univer1884, against the estate for unpaid taxes for sal application, but yields to the actual sithe years 1882 and 1883, on credits secured tus of the property when justice requires that by mortgages, amounting to about $122,000, it should. It is not allowed to be controland the claim was allowed. The executors ling in matters of taxation. Thus, corporeal appealed to the district court, where the or- personal property is conceded to be taxable der of the probate court was affirmed. The at the place where it is actually situated. A case was then carried by the executors to credit, which cannot be regarded as situated the supreme court of Minnesota, which, on in a place merely because the debtor resides May 26, 1886, affirmed the judgment. Re there, must usually be considered as having Jefferson, 35 Minn. 215, 28 N. W. 256. It is situs where it is owned, at the domicil was objected "that taxes are not debts which of the creditor. The creditor, however, may can be proved against the estates of deceased give it a business situs elsewhere; as where persons;" but the court overruled the objec- he places it in the hands of an agent for coltion, saying: "It is not material whether a lection or renewal, with a view to reloaning personal tax is a debt, in the sense that an the money and keeping it invested as a peraction against the person may be maintained manent business." After citing Catlin v. to recover it. It is at least a claim against Hull, 21 Vt. 152; People ex rel. Jefferson v. the property which survives the death of the Smith, 88 N. Y. 576; Wilcox v. *Ellis, 14 Kan [142] person against whom it is levied, and re- 588, 19 Am. Rep. 107; Tazewell County Sumains a claim against his estate. The stat- pers. v. Davenport, 40 Ill. 197, and many ute regards it as a debt to be paid out of the other cases, the opinion continued thus: estate. In prescribing the order of prefer- "The obligation to pay taxes on property for ence in which debts shall be paid, where the the support of the government arises from estate is not sufficient to pay all, it provides the fact that it is under the protection of the (Gen. Stat. 1878, chap. 53, § 38) that, after government. Now, here was property withpaying the necessary expenses of the funeral, in this state, not for a mere temporary purlast sickness, and administration, the execu- pose, but as permanently as though the owntor or administrator shall 'pay the debts er resided here. It was employed here as a against the estate in the following order: business by one who exercised over it the same control and management as over his own property, except that he did it in the name of an absent principal. It was exclusively under the protection of the laws of this state. It had to rely on those laws for the force and validity of the contracts on the loans, and the preservation and enforcement of the securities. The laws of New York

Second, public rates and taxes.' This, we think, is conclusive that, for the purpose of proof and payment out of the estate, a personal tax is a debt." The court further held that a tax list or tax duplicate, duly certified by the county auditor, as required by statute, was prima facie evidence [141]of the *due levy of the taxes in it. The main

never operated on it. If credits can ever have an actual situs other than the domicil of the owner, can ever be regarded as property within any other state, and as under obligation to contribute to its support in consider-attorney empowering them to satisfy or disation of being under its protection, it must be so in this case."

It is insisted, however, that this is not so, because in 1885, which was after the presentation of the claim aginst the father's estate in the probate court, though before the decision by the supreme court, the notes then in the hands of the agents were delivered to Mrs. Bristol, and thereafter all new notes taken in the business were sent to her and kept by her in her home in New York. But these notes were payable as before at the oficil of the owner. fice of the agents in Minnesota; the mortgages securing the notes were retained by the agents, and the notes were returned to the agents from time to time, whenever required by them, for the purpose of renewal, collection, or foreclosure of securities; the agents continued to collect the money due on the notes, and to make loans in the name of Mrs. Bristol, sometimes under her husband's direction, but generally on their own judgment; and they remitted money to Mrs.

By 1623, Gen. Stat. 1894 (Gen. Stat. 1878, chap. 11, § 105), it was provided that "the taxes assessed upon personal property shall be a lien upon the personal property of the person assessed from and after the time the tax books are received by the county treasurer."

sonal property from the person of the owner | linquent; for the filing of delinquent lists in for purposes of taxation was discussed at the appropriate office; for issue of warrant; length. As also the case of Savings & Loan for the distraint of goods and chattels; for [145]Soc. v. Multnomah County, 169 U. S. 421, personal judgment on service of citation; 427, 42 L. ed. 803, 805, 18 Sup. Ct. Rep. 392, and for proceeding against nonresidents by in which a statute of Oregon taxing the in- attachment and publication of notice. Gen. terest of a mortgagee in real estate was ad- Stat. 1894, chap. 11; Gen. Stat. 1878, chap. judged valid, although the owner of the 11. mortgage was a nonresident." In the latter case the subject was much considered, and Mr. Justice Gray, delivering the opinion of the court, said: "The authority of every state to tax all property, real and personal, within its jurisdiction, is unquestioned. M'Culloch v. Maryland, 4 Wheat. 316, 429, 4 L. ed. 579, 607. Personal property, as this court has declared again and again, may be taxed, either at the domicil of its owner, or at the place where the property is situated, even if the owner is neither a citizen nor a resident of the state which imposes the tax. Tappan v. Merchants' Nat. Bank, 19 Wall. 490, 499, 22 L. ed. 189, 193; State Railroad Tax Cases, 92 U. S. 575, 007, sub. nom. Taylor v. Secor, 23 L. ed. 663, 671; Coe v. Errol, 116 U. S. 517, 524, 29 L. ed. 715, 717, 6 Sup. Ct. Rep. 475; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 1S, 22, 27, 35 L. ed. 613, 616, 618, 3 Inters. Com. Rep. 595, 11 Sup. Ct. Rep. 876.

Thus, it appears that on the return of the delinquent tax list the amount of the tax could be collected by distraint of goods and chattels, or by proceedings by attachment. and publication, judgment in which would operate on the property taken in attachment, by garnishment or otherwise. There was no want of due process in all this, for while the nonresident came under the obligation to pay, appropriate notice and opportunity to contest were afforded. And if a personal action were brought and service obtained, the defendant would not be cut off from any competent defense, as the delinquent list would not necessarily be held conclusive. In this case no defense on the merits appears to have been relied on except the want of situs.

ing to consent to the jurisdiction.

Accepting the views of the state court in relation to the state statutes and proceed ings thereunder, and concluding that the Dewey v. Des Moines, 173 U. S. 193, 43 L. Constitution of the United States did not ed. 665, 19 Sup. Ct. Rep. 379, cited by plainoperate to prohibit the exercise of the power tiff in error, is not to the contrary. What to tax these investments, it follows that the was ruled there was that a citizen of one circuit court did not err in sustaining the state cannot be cast in a personal judgment validity of the taxation. But it is further in another state on an assessment levied contended that, as Mrs. Bristol was a non- there on real estate for a local improvement, resident, the power to tax could be exercised without service on him, or voluntary ap only as against the very property taxed:pearance, or some action on his part amountthat these assessments did not constitute judgments in personam; and that judgment against her estate could not, therefore, be rendered upon them. The state statute provided that claims for taxes should be preferred to Mrs. Bristol died in August, 1894; the ordinary debts (Stat. 1894, § 4529), and, as will was admitted to *probate by the probate[147} has been seen, the supreme court has decid- court of Ramsey county, October 19, 1894; ed that, "for the purpose of proof and pay. Washington county filed its claim for taxes ment out of the estate, a personal tax is a in that court April 18, 1895; the statute of debt." The court, for that purpose, so limitations provided that actions "upon a treated taxes, but not as being debts in the liability created by statute" should be barred usual acceptation of the term. The obliga-by the lapse of six years. Stat. 1894, § tion to contribute to the support of govern-5136. This statute applied to actions ment in return for the protection and advan-brought in the name of or for the benefit

This brings us to consider the plea of the statute of limitations interposed as to the taxes for the years 1883 to 1888 inclusive.

tages afforded by government is not depend-of the state. $5142. The right to proceed

ent on contract, but on the exercise of the to enforce these taxes commenced the 1st of public will as demanded by the public wel-April of the year following that for which fare. they were levied. If this had been a personBy the laws of Minnesota, moneys, cred-al action brought against Mrs. Bristol in her its, and other personal property were re-lifetime, the plea of the statute was open to quired to be listed, either by the owner or his be defeated by the fact of her nonresidence agent; provisions were made for notice; for ($ 5145), but treating the filing of the de[146]action by the assessor in case of failure to linquent lists as proceedings in rem, it is conlist; for a board of review, meeting at a tended that the statute applied. specified time; for the delivery of lists (in In Redwood County v. Winona & St. P. tax books) to the county treasurers, who Land Co. 40 Minn. 512, 41 N. W. 465, 42 N. were duly authorized to receive and collect W. 473, the statute of limitations of six the taxes named therein; that personal prop-years was held to apply to proceedings to enerty taxes unpaid on the 1st of March next force the collection of taxes against real esafter they became due should be deemed de- 'tate, and to the same effect are Mower Coun

Hence, in a subsequent proceeding to enforce collection from property of the decedent, the rule which was applied to proceedings to obtain judgment against real estate would appear to be applicable in principle. If the county of Redwood had lost its right to enforce the assessments (supposing they had been made when they should have been), by lapse of time, the county of Washington[149] may well be held subject to a similar deprivation in respect of the allowance of a portion of its claim.

The judgment is reversed, and the cause remanded with a direction to exclude the taxes for the years 1883 to 1888, inclusive, and to render judgment for the taxes, penalties, and interest after the latter year.

Mr. Justice White concurred on the ground of stare decisis only.

as to

On May 1, 1900, this judgment was amended as to the interest only, so read, "with interest on the aggregate sum thereof from June 29, 1898, the date of the judgment below."

ty v. Crane, 51 Minn. 201, 53 N. W. 629; | other words, the filing of the delinquent lists Pine County v. Lambert, 57 Minn. 203, 58 N. had reference to property, and a personal W. 990; State ex rel. Slingerland v. Norton, judgment could not have been taken thereon 59 Minn. 424, 61 N. W. 458. In the first without service of citation. cited case it appeared that certain lands, having been taxed, were in 1883 assessed and a tax levied for each year for fifteen years prior to that time. On an application for judgment against the land it was objected that the statute of limitations had run as to all taxes where the application for judgment could have been made six years or more prior to the time it was made, if the land had been taxed at the time it should have been taxed under the statute, and the court sustained the objection. It was held that by statute in Minnesota the statute of limitations ran against the state the same as against an individual; that a tax was a liability created by statute; that although statutes of limitation may in terms be applicable only to actions, they are to be construed liberally and applied to all proceedings that are analogous in their nature to actions "so as to make the right sought to be enforced, and not a form of procedure, the test as to whether or not the statute applies. Upon this principle they are held to apply to all claims which may be the subject of actions, however presented; also that they furnish a rule for cases analogous in their subject-matter, but [148]for which a remedy unknown to the *common law has been provided. They have also been UNION REFRIGERATOR TRANSIT COMapplied by analogy to proceedings in admiralty, to claims in bankruptcy, or in probate court, although not within the strict letter of the statute. A tax being a liability created by statute, and the filing of the delinquent list being, as the statute declares, and as we have held, the institution of an action against the land for the recovery of the tax appearing against it in the list; and, inasmuch as the nature of the right sought to be enforced, and not the mode of procedure, is the test, we are unable to see why it should make any difference whether the action is in rem or in personam,—against the property instead of against its owner. We have therefore come to the conclusion that these proceedings are, within the meaning of the statute, 'an action upon a liability created by statute,' and are barred as to all taxes for the enforcement of which such proceedings might have been instituted more than six years before the commencement of the present proceedings, had such taxes been assessed in the proper year."

The estate of Mrs. Bristol is liable to respond to this claim because these taxes were lawfully levied in respect of her property situated in Minnesota when the levies were made; and the statute gave a lien for them against all her personal property within the jurisdiction. Collection could have been enforced by distraint, or by attachment, and in either case could only have been made out of the property sequestered. In the pending proceeding, then, which seeks to subject assets of the estate within the jurisdiction to payment of the claim, it seems to us the ruling of the supreme court is applicable. In

PANY, Piff. in Err.,

v.

STEPHEN H. LYNCH, Treasurer of Salt Lake County and Collector of Taxes therein.

(See S. C. Reporter's ed. 149-155.)

Tax on refrigerator cars—as affecting interstate commerce-presumption in favor of assessment.

1.

2.

The state may tax the average number of refrigerator cars used by railroads within the state, but owned by a foreign corporation which has no office or place of business within the state, and employed as vehicles of transportation in the interchange of interstate

commerce.

The presumption is that an assessment of refrigerator cars owned by a foreign corporation and used in interstate commerce was correct and regular, and was made upon the average number used in the state during the year, where there was no objection that too many cars were assessed, or that they were assesed too much or in an improper manner, but the only objection was that they could not be taxed at all.

Note. As to state taxes as affecting commerce-see notes to Rothermel v. Meyerle (Pa.) 9 L. R. A. 366; American Fertilizing Co. v. North Carolina Bd. or Agr. (C. C. E. D. N. C.)

11 L. R. A. 179, and Bangor v. Smith (Me.) 13 L. R. A. 686.

As to taration by state as interference with commerce-see note to Pittsburg & S. Coal Co. v. Bates, 39 L. ed. U. S. 538.

As to regulation and taxation of interstate commerce by state-see notes to Orleans Bd. of Assessors v. Pullman's Palace Car Co. 8 C. C. A. 492, and McCanna & F. Co. v. Citizens'

Trust & Surety Co. 24 C. C. A. 21.

Argued March 21, 1900. Decided April 9, said state from without the same, or in the

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