Page:Harvard Law Review Volume 32.djvu/659

623 JURISDICTION TO TAX 623 at least in New York, where a domiciled owner is not taxable on absent property.^^^ An estate held by joint executors is taxable at the domicile of the deceased, though some of them are nonresidents.*^* VII. Excise Tax Not only persons and property may be taxed, but also the privilege of acting within the state, or of taking any benefit from the law of the state. In short, whatever the state may refuse or forbid, it may grant or allow only upon the payment of a fee to the state in return for the privilege: a license fee, or excise tax.*^^ In People v. Reardon **^ the state had laid a transfer tax upon the transfer within the state of shares in a foreign corporation be- longing to a nonresident. The power of the state to tax was questioned, on the ground that neither the person nor the prop- erty was taxable by the state; the court, however, held the tax valid as a privilege tax. Judge Vann said: "The tax, however, is not on property, but on the sale of property, or on a particular kind of contract when made within this state. The certificate, itself, is not liable for the tax, but the person selling it is. The tax is not a lien on certificates, nor on shares, which may be owned to any extent throughout the state, free from any claim under the statute in question. It is the sale alone that gives rise to the tax, which is imposed through the command of the law to the seller to pay the tax when the contract to sell is made, and it is enforced not by levy and sale, but by civil and penal remedies against the person of the seller. While this tax, the same as all other taxes, must ultimately come out of the property of the seller, it cannot be enforced against the certificate sold as distinguished from his other property. . . . "Jurisdiction over the persons who make the contract does not de- pend on their residence, but on their presence within the state when the contract is made. . . . Both they and their contract are subject to its laws, and they are not only entitled to the protection thereof, but are '*» People V. Coleman, 119 N. Y. 137, 23 N. E. 488 (1890); People v. Barker, 135 N. Y. 656, 32 N. E. 252 (1892); People v. Tax Commissioners, 17 N. Y. Supp. 923 (1891). "* People V. Commissioners of Taxes, 38 Hun (N. Y.) 536 (1886); Hawk v. Bonn, 6 Ohio Circ. Ct. 452, 3 Ohio Circ. 535, December (1892). 1" Nathan v. Louisiana, 8 How. (U. S.), 73 (1850); Wiggins Ferry Co, r. East St. Louis, 107 U. S. 365 (1882); Williams v. Fears, 179 U. S. 270 (1900). ^88 184 N. Y. 436, 449, 77 N. E. 970 (1906),