Marion County v. McIntyre. of public property. Of course, it is not intended to apply this language to the defendant, but it shows the direct tendency and the inevitable result, if the principle contended for by the defendant's counsel should be reduced to practice. Few, if any cases of this sort can be found. In fact, the necessity for them can but seldom arise in a law abiding community. And had there been a healthy public sentiment in the neighborhood where the parties who robbed the treasury of the plaintiff were arrested, there would have been no occasion for bringing this suit. But the defendant insists that no recovery can be had here, for the alleged reason that the plaintiff had no right to place money in his hands for any such a purpose; that no such a payment could be made by the plaintiff and a liability be created thereby. We must bear in mind that the money belonging to the plaintiff was stolen; that it had passed beyond the reach and control of the plaintiff and its officers, without the consent or fault of either, and had found its way into the hands of other parties, where nothing but legal process could reach it. The two thousand dollar package had been placed in the hands of the defendant, without the knowledge and consent of the officers of Marion county, who had the lawful right to control it. That package was undeniably the property of the plaintiff. The possession thereof by the plaintiff, or its officers, seemed indispensable in the prosecution of the robbers. McIntyre had the package of money. He was out of reach of process issued by the Iowa courts. He was not willing to surrender the money until the plaintiff would deposit with him $1,500 in lieu thereof, to indemnify him against loss which might arise from his going on the bond of Thompson and Hetherington. This was done by the plaintiff, and afterwards the defendant was fully discharged from his liability on the bond. After that, he paid out a part of the money on suits against the county or its agents, and the defendant received credit therefor. He received the money from the county or its representatives, to indemnify him against loss. Ogilvie v. Crawford County. He lost nothing, and as the money was placed in his hands to hold simply until he should be discharged on the appearance bond, it cannot, in any sense, be regarded as a payment out of the public money of the plaintiff, as claimed by the defendant. When he was released from liability on the bond, he ought to have paid back the money. He did not do so. And finally, when appealed to by the representatives of the county, he positively refused to do so, for reasons stated in the answer. is not as it should be. It is positively wrong. This And when there is a wrong, there is usually a corresponding remedy. When there is a remedy, a court will not long hesitate about its application. I have found no reported case, nor have I read or seen anything in the laws of man, nor have I read or seen or heard of anything in the laws of God that will prevent a recovery in a case like this. Reason, justice, equity, law, common sense and fair dealing, all unite in demanding a restoration of this money to the plaintiff, of which it was at first wickedly and feloniously deprived, and from which it has been long improperly and unlawfully withheld. I conclude, that justice has been already too long delayed, and that it must be no longer impeded or interrupted. The motion in arrest of judgment, therefore, must be overruled. Judgment for the plaintiff on the verdict, for $1,537.10. DILLON, Circuit Judge, took no part in deciding this case. OGILVIE v. CRAWFORD COUNTY. (District of Iowa. May, 1881.) 1. TAXES ON PROPERTY IN TRANSIT THROUGH THE STATE.- A state cannot levy a tax upon property in transit to other states or countries. Such property has no situs in the state in the proper legal sense of that word. 2. SAME PROPERTY IN COMMERCIAL TRANSIT.— Where a party purchased Ogilvie v. Crawford County. corn from various parties, caused it to be removed to the railway and there to be put in cribs temporarily to await transportation, and with the purpose on his part to have it carried beyond the state: Held, that it was in commercial transit, and not taxable by the state. But there must be a purpose to ship immediately, or as soon as transportation can be convienently obtained, followed up by actual shipment in a reasonable time. 3. SAME-CRIBBING OF CORN.- With the qualification above stated, the cribbing of corn may be treated as a thing done from necessity or for convenience in the course of transportation. Love, District Judge. This case is before the court on demurrer to the petition. The petition alleges that the plaintiff, who is a citizen of Canada, had on January 1, 1879, certain cribs of corn which had been purchased in Crawford county, Iowa, for the purpose of shipment to Canada; that said corn had been moved by the plaintiff from its places of production toward its destination beyond the state, and temporarily placed in cribs; that it was in cribs awaiting shipment by the Chicago and Northwestern Railway, on the first day of January, 1879; that the plaintiff's intention was at all times to move said corn in bulk beyond the state, and not to sell or manufacture the same within the state of Iowa; and that the corn has since been removed in bulk out of the state, no part of the same having been sold, used or manufactured therein. It is alleged further that while the corn was so temporarily in cribs, it was assessed as property of a non-resident, a tax upon the same levied and a warrant issued to the sheriff, whereby the plaintiff was compelled, in order to save his property, to pay the taxes levied as aforesaid. There is a second count stating different circumstances, but presenting the same question. The petition prays judgment for the amount of taxes paid, amounting to $502.22, with interest. The question thus presented is, whether or not the property taxed was on the first day of January, 1879, when it was assessed for taxation, in the course of transportation from the state of Iowa, to any other state or country, as an article of commerce? In a word, was it in commercial transit? Ogilvie v. Crawford County. That a state cannot levy a tax upon property in transit to other states and countries is clear; because the property then has no situs in the state in the proper legal sense of that word. It would be a most serious evil and a direct obstruction to interstate commerce for any state to exercise the power of taxing property while in commercial transit to other states or countries. The question then is, was the property in commercial transit? The petition is not as clear and explicit as it might be, but the fair construction of it is, that the plaintiff, having purchased the corn from various parties, caused it to be removed to the railway and there put in cribs temporarily to await transportation, and with the purpose on his part to have it carried beyond the state. This allegation of intention is essential, because otherwise a purchaser might crib his corn on a railway, with no purpose of immediate shipment, but for the purpose of awaiting the future course of the markets, or with intent to evade taxation, in which cases the transit would, in my opinion, be treated as at an end for the time being at least. If this were not so, a party might keep his property in cribs near a railroad for an indefinite period of time, exempt from taxation, without any purpose of immediate shipment. There must be, in my judgment, a purpose to ship immediately, or at least as soon as transportation can be conveniently obtained, followed up by actual shipment in a reasonable time, in order to exempt the property from taxation. With this qualification, the cribbing of the corn may be treated as a thing done from necessity or for convenience in the course of transportation. It certainly would be unreasonable to require that a party, in order to bring himself within the protection of the law as a shipper in transitu, should transfer the corn directly from his wagons to the cars, or place it upon the ground, to be thence transferred to the cars; and this he would be compelled to do, unless he may place it in cribs or store it temporarily in ware Ogilvie v. Crawford County. houses, to await the means of shipment in the ordinary course of transportation. It would seriously cripple and obstruct commerce in the productions of this state, and thus inflict a great injury upon our own people, if a purchaser could not temporarily deposit the property purchased in cribs or warehouses, to await the means of transportation. I have examined the cases cited by the defendant's counsel, and I cannot see that any of them touch this case at all except Carrier v. Gordon, reported in 21 Ohio, 605. That case is similar to the present, but clearly distinguishable from it; indeed, if the language of the court in deciding it be well considered, the reason of the case supports our judg ment in the present case. In Carrier v. Gordon, the property purchased had not been moved at all by the purchaser. It remained at the place of purchase and could not, without the utmost violence to langnage, be said to have been in the course of transportation. Indeed the averment was not that the property was in transit, but that the plaintiff intended to remove it from the state upon the opening of navigation, etc. In delivering the opinion the court say: "It is true that in order to constitute it property in the state, within the meaning of the law, it must have a situs in the state. If it is at the time the tax attaches in transitu, either through the state or from a point in the state to a point outside the state, it is not to be regarded as property in the state within the meaning of the statute, but as property belonging to the place of its destination. But such was not the situation of this property at the time it was returned for taxation. There is nothing in the plaintiff's petition to show that the plaintiff's timber had in any sense started on its journey, or had been removed from the place or places where it had been purchased." "To say that the simple purchase of the property, with an intention to remove it, would relieve it from liability to tax |