As bearing upon the first question the following statutes of the state should be quoted:

"Section 5328. All real or personal property in this state, belonging to individuals or corporations, and all moneys, credits, investments in bonds, stocks, or otherwise, of persons residing in this state, shall be subject to taxation, except only such property as may be expressly exmpted therefrom. * * *”

The line of demarcation between tangibles and intangibles is very clearly drawn in this section: the tangibles are to be taxed because of their situs in this state; the intangibles are to be taxed because their owners reside in this state. Putting it in another way: the situs of the tangibles is that which they naturally have independent of their ownership; while the situs of the intangibles is to be determined by that of the owner, on the maxim that movable things follow the person, which maxim is very clearly declared in Section 5328.

However, the same section goes on to provide that:

"Such property, moneys, credits, and investments shall be entered on the list of taxable property as prescribed in this title."

It must follow, therefore, that if there is any inconsistency between the detailed provisions of "this title" and the declaratory provisions of the first part of the section as just quoted, the detailed provisions must govern.

This statement brings us to some of these detailed provisions, which may be quoted as follows:

"Section 5370. Each person of full age and sound mind shall list the personal property of which he is the owner, and all moneys in his possession, all moneys invested, loaned, or otherwise controlled by him, as agent, or attorney, or on account of any other person or persons, company or corporation, and all moneys deposited subject to his order, check, or draft; all credits due or owing from any person or persons, body corporate or politic, whether in or out of such county; and all money loaned on pledge or mortgage of real estate, although a deed or other instrument may have been given for it. if between the parties, it is considered as security merely. The property of a ward shall be listed by his guardian, of a minor child, idiot, or lunatic having no guardian, by his father, if living, if not, by his mother, if living, and if neither father nor mother is living, by the person having such property in charge; of a person for whose benefit property is held in trust, by the trustees; of an estate of a deceased person, by his exe cutor or administrator: of corporations whose assets are in the hands of receivers, by such receivers; of a company, firm,

or corporation, by the president or principal accounting officer, agent partner or agent thereof; and all surplus or undivided profits held by a society for savings or bank having no capital stock, by the president or principle accounting officer.

Observe in this section the separate mention of different representative capacities. The first sentence seems to be limited to "moneys," and imposes upon a representative coming within the category of "agent or attorney" the duty to list such "moneys" controlled by him for another as such agent or attorney. The last sentence provides for guardians, parents of minor children, trustees, executors, administrators, receivers and officers of corporations; it does not mention agents or attorneys generally; so that while this sentence makes it the duty of a guardian, trustee, receiver, etc., to list all the property of his beneficiary, it cannot be extended, in view of the first sentence of the section, so as to impose upon a mere agent the duty of listing any property owned by his principal. There is, of course, a real basis for this distinction. between agents and other fiduciaries; an agent possesses authority delegated in fact; some of the other fiduciaries, as guardians, executors, etc., exercise an authority delegated by law. Moreover, an agent does not have title, though he may have possession and control; he is, therefore, not the owner; while the trustee, for example, has possession, title and legal ownership.

The very first declaration of the section which has been quoted is that

"Each person of full age and sound mind shall list the personal property of which he is the owner,"

and the context makes it clear that he must list this personal property, and indeed all of his intangibles with the possible exception of moneys in the possession of an agent (a special case which must be considered in connection with your question), even though the control and management of the intangibles has been delegated by him to an agent. For example, if both owner and agent resided in Ohio, and bonds, stocks, etc., of the owner were in the possession of the agent for investment and reinvestment, this section would impose the duty of listing upon the owner, and not upon the agent. Sections 5371 and 5372-3 state where "a person required to list property on behalf of others" shall list such property and how it shall be listed. But so far as these sections depend upon Section 5370, it is clear that they have no application to an agent, with the

possible exception of an agent having moneys, "invested, loaned, or otherwise controlled by him."

Section 5372-1 provides as follows:

"Personal property, moneys, credits, investments in bonds, stocks, joint stock companies or otherwise in the possession or control of a person as parent, guardian, trustee, executor, administrator, assignee, receiver, official custodian, factor, agent attorney, or otherwise, on the day preceding the second Monday of April in any year, on account of any person or persons, company, firm, partnership, association or corporation, shall be listed by the person having the possession or control thereof and be entered upon the tax lists and duplicate in the name of such parent, guardian, trustee, executor, administrator, assignee, receiver, official custodian, factor, agent attorney or other persons, adding to such name words briefly indicating the capacity in which such person has possession of or otherwise controls said property, and the name of the person, estate, firm, company, partnership, association or corporation to whom it belongs; but the failure to indicate the capacity of the person in whose name such property is listed or the name of the person, estate, firm, company or partnership, association or corporation to whom it belongs shall not affect the validity of any assessment thereof."

This section seems to extend, and perhaps to modify, Section 5370 of the General Code, in that it groups together the "factor, agent, or attorney" with the other kinds of fiduciaries mentioned in Section 5370 and to require the same sort of listing of all. The question submitted by you will therefore have to be considered in the light of this section as well as of Section 5370. For the purpose of argument it will be assumed for the time that it has the effect of requiring a resident agent of a non-resident principal to list the intangible assets of the principal which are in his possession and subject to his control. In fact, that proposition is supported by abundant authority both in Ohio and elsewhere under statutes of similar import.

Take it, then, that if both agent and principal were residents of Ohio, the duty to list would be regarded as imposed by Section 5372-1, and possibly even by another possible interpretation of Section 5370 of the General Code, upon the agent. The question still remains as to whether, where the agent is not amenable to the statutes of the state so that Sections 5372-1 and 5370 cannot apply to him because he is a non-resident, the first provision of Section 5370 applies to the principal and requires him to list property of which

he is the owner, even though it be in the possession of a non-resident agent.

In approaching the discussion of this question the distinction above noted as existing between executors, administrators and trustees, on the one hand, and mere agents, on the other, ought to be observed. Therefore, the conclusions arrived at in opinion No. 2500 addressed to the Tax Commission of Ohio, (a copy of which is enclosed herewith), do not necessarily control the present question. That opinion dealt with the question of the taxability of the interest of a beneficiary of a trust, the trustee of which was a non-resident, and it was held that the statutes o fthis stae did not reach such interest.

At least one case in this state can be found which seems to be in point on the question thus raised-Connor v. Wilson, 9 Am. Law Record, 752; 6 Ohio Doc. Rep. 941. That case was an action brought by the county treasurer to collect taxes from the defendant on account o fnotes secured by mortgage which were owned by him, but which were at the time they were assessed for taxes actually in the State of Indiana under the control and management of an agent of the defendant, who was authorized to invest and reinvest. It was also distinctly alleged that the agent had paid taxes on the said notes in Indiana. The court held that the tax was properly assessed. To be sure, the opinion does not discuss some of the questions which seem to be involved, the argument being devoted to the question of jurisdiction of the state to tax intangibles owned by a resident. Nevertheless, some of the statutes which have been quoted herein were in force at the time this case was considered and decided, and it is at least a precedent.

In Lee v. Dawson, 8 C. C., 365, the following appear in the headnote:

"1. Owners of intangible property, residents of Ohio, must list the same for taxation, even though the same is under control and management of a non-resident agent for investment and collection.

2. A non-resident of Ohio is not required to list his intangible property for taxation, notwithstanding it is under the control of a resident agent, for investment and collection."

It is believed that the second proposition laid down in the headnote is not sustained by the authorities.

See Grant v. Jones, 39 O. S., 506; Meyers v. Seaberger, 45 O. S., 232.

The court seems to struggle to make the statutes of the state

consistent and just and to adhere to the single principle that movable things follow the person, regardless of whether the question is as to the taxation of the intangible property of a non-resident in the hands of a local agent having authority to invest and reinvest or the converse of that proposition.

We may, however, add the case to the other one cited as a precedent on the point that where the owner resides in the state and the agent has the evidences of the intangibles outside of the state, with power over the fund, the owner is subject to taxation in the state.

Turning to the authorities from outside of Ohio, we find an interesting interpretation by the Court of Appeals of the State of New York of statutes something like those which have been considered, in Boardman v. Supervisors, 85 N. Y., 359. The New York statute therein construed provided, in substance, that

"Every person shall be assesed in the town where he resides for all personal estate owned by him, including all such personal estate as is in his possession, or under his control, as agent, trustee, guardian, executor or administrator."

The court held that so far as the word "agent" (which had been incorporated in the statute by amendment) was concerned, the object of the amendment was merely to reach property of a nonresident in the hands of a resident agent; so that where the owner resided in the state the statute had no application.

If this principle be applied to our own statutes, it would result in requiring an agent to list only when his principal is a non-resident, and in all other cases requiring the owner to list.

On the other hand, however, the same court, shortly afterward, in People v. Smith, 88 N. Y., 576, held that intangibles owned by a resident but in the possession of a non-resident agent with authority to invest and reinvest, etc., were not taxable in New York. This case is squarely in point, and is opposed to those previously cited. The reasoning of the court appears in the following quotation:

"It cannot be supposed that the legislature intended that our citizens should be subject to taxation here and in other states also upon the same property, or that it would tax in the hands of agents here securities belonging to non-resident owners, while it denied the right of other states to tax the securities of our citizens in the hands of agents there."

Boardman v. Supervisors, supra, was distinguished on the ground that the principal and agent were both residents of New York in that case. The court admitted that New York had the