Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

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Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 43 of 73)
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will be seen, is marked. The former section, 575, is much
broader than the latter, 564, and embraces not only the cases
provided for by section 564, but apparently all claims arising
from improvements ; possibly others. But failure to comply
with section 564, where that section is applicable, is a bar to
any action ; while failure to comply with section 575, though
it would defeat the pending action, would not be a bar to
another suit based on a claim properly filed under that
section subsequently to the first suit.

If we were required to determine whether section 564 or
section 575 was intended by the figures 544, in the Act of
1872, the case would not be free from difficulty. Much may
be said in favor of either construction. We are of the opinion
we need not determine the question. Let it be conceded that
section 564 was intended. Then we are of opinion that the
case would not have been diflFerent so far as lot owners are
concerned, if section 564 had been in terms incorporated into
the Act of 1872, instead of such reference to section 564, if
that be the section, and hence only the owners of lots
bounding or abutting upon the proposed improvement, were
required to give such notice. No doubt many houses are on
substantially the same plane as the roadway of the viaduct,
and the real estate on which they are built are lots " bound-
ing or abutting upon the proposed improvement;" but is that
J^mrrHTO^^ truc of the premises of Cohen ? We are clear
?So^?S"'°S! that it is not. The street, as we have seen, is in
consSLrm" front of his house, forty -five feet below the road-
way of the viaduct. That structure has furnished a new
route for travel, and has largely diverted travel from that
part of Superior Street, and if Cohen desires to cross the
viaduct, he must travel nearly one hundred and thirty yards
to get upon it. In no just sense is his property a lot ** bound-
ing or abutting upon the proposed improvement." In
reality, this was no more an improvement of Superior Street
than an elevated railway is an improvement of a street,
but the viaduct furnishes an additional and substantially *

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an exclusive route of travel to persons going across the

Doubtless, it is true, that the words bounding and abut-
ting have no such in flexiblemeaning as to require the lots
assessed or injured to touch the improvement, though the
usual meaning of the words is that the things spoken of do
actually adjoin. Without entering very much into the origin
of the word abutting, it is sufficient to say that, according to
Latham, it does not imply that the things spoken of are
" necessarily in contact ;" and to the same effect see Webster,
Worcester and Murray. In ascertaining the meaning of
such word, of course regard must be had to the intent of the
law-maker, though it will be seen that the usual meaning
conveyed is that the things spoken of touch or come to.
gether. Holt v. Somerville, 127 Mass. 408 ; Wakefield, etc.,
V. Mauder, 5 C. P. Div. 248.

So with the word bound. True, it was held in Richards
V. Cincinnati, 31 Ohio St. 507, that " Where a strip of land
ninety-one feet in width was dedicated for a street and the
municipal authorities improved a street thereon, of the width
of ninety feet, leaving one foot on one side thereof unused ;
except in sloping the embankments and excavations, the own-
ers of property abutting on such foot of land are liable to be
assessed as owners of property abutting on the improve-
ment." In that case Mcllvaine, J., said : " It seems to us
that in order to exempt these proprietors from assessment as
abutters on the improvement, it must appear that this inter-
vening foot of land deprives them of full, free and lawful
access to the street improved ; but such deprivation could
result only when the right and exclusive use thereto have re-
verted to the original dedicators and their heirs. If the pub-
lic right to its use still continues, or if the right to the strip
has vested absolutely in the owners of lands abutting upon
it; after abandonment by the public, then, in either case,
their liability to assessment is certain. That this foot of
land, before the improvement of the avenue, was subject to
the use of the public, as part of a highway, is not disputed ;
and we are unable to find any ground upon which it can be
held that such right in the public has terminated. The
greater part, if not the whole of this strip, is utilized by the
public in making slopes to embankments and excavations of

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the street ; a use as important and germane to public travel
and convenience as if located in the centre of the street'*
And see Fass v, Seehawer, 60 Wise. 525.

It seems to us, a just consideration of this reasoning leads
to the conclusion that property situated as the plaintiff's is,
with respect to the viaduct, is not lands " bounding and
abutting upon the proposed improvement,'* and that the
court below erred in this respect. He is deprived, and in no
merely technical sense, of the full, free and lawful use of
Superior Street as it existed before the viaduct was con-

Judgment of the District Court and Court of Common
Pleas reversed, and cause remanded to the Court of Common
Pleas for a new trial.

Property and " Taking" thereof for Public Use. — Property is a
right of ownership of any object. Sir G. C. Lewis, Use and Abuse of
Political Terms. 170. It is the right to possess, use and enjoy it, Weyne-
hamer^/. People. 13 N. Y. 433, i Bl. Com. 138; to the exclusion of all
others. Mills Em. Dom. 31 ; indefinite in point of user. 2 Austin Jur.
965 ; unrestricted in point of disposition and unlimited in point of dura-
tion, 2 Austin Jur. 817. The term property in the constitution includes a
right of action for injuries to land proposed to be taken for public use
Morris v. Townsend, 24 Barb. 658. It also includes the following, none
of which may be taken for public use without compensation ;

A right of reversion. Heard v, Brooklyn, 60 N. Y. 242 ; a right to use
water-power, Bank v. Roberts, 44 N. Y. 192 ; an easement over the land
of another. People v, Haines, 49 N. Y. 587 ; Arnold v. Railroad Co., 55
N. Y. 661; the lien of a mortgage. Astor v, Hoyt, 5 Wend. 605; a
riparian right to use running water, Gardner v, Newburgh. 2 Johns. Ch.
161 ; Yates v. Milwaukee, 10 Wall. 497 ; an easement of way over the road
of a turnpike company, Troy, etc.. Railroad Co. v. Turnpike Co., 16 Barb.
100; a corporate franchise. West Railroad Co. v, Dix. 6 How. 507; Rich-
mond V, Railroad Co., 13 How. 71 ; a right in land subject to the easement of
a public highway, Williams 7/. Railroad Co., 16 N. Y. 97 ; a contested claim
to unliquidated damages, Erwin v, U. S., 97 U. S. 392.

In all the foregoing things their owners have property rights and in-
terests which cannot be taken for public use without compensation being
made therefor. And it goes almost without saying that lot-owners have
rights of property in the streets adjacent to their lots, and any new
burden, servitude, or use to which a street is subjected outside of its use
as a public thoroughfare, which impairs or destroys such rights, is a taking
of private property for which compensation must be made to such lot-
owners. Instances of takings of private property for public use and for
which compensation has been adjudged are, among others, the following:

Where an exclusive right to the franchise of taking toll is granted, the

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grant of a similar privilege to another is a taking, State v. Noyes, 47
Me. 189 ; a partial destruction or a diminution of value is a taking,
Gloveri/. Powell, 10 N.J. Eq. 211; acquiring an easement to run on
another's road, Jersey, etc.. R. R. Co., 20 N. J. Eq. 61 ; the destruction by
the State of a waterfall in a private stream, Pe* pie v. Appraisers, 13
Wend. 355 ; changing a private into a public stream, Morgan v, Keeig,
35 N. Y. 454 ; digging a ditch by authority of the legislature on the land
of a private person, People v, Nearing, 27 N. Y. 306 ; appropriating land
by the public, allowing nothing for widow's dower. In matter, etc., 19
Wend. 678 ; laying gas pipes in country^ highway, 62 N. Y. 386 ; build-
ing sewer in city street, Kelsey v. King, 33 How. Pr. 39 ; interfering with
use of shade trees on street, Village v. Richardson, 4 Lansing (N. Y.), 136 ;
building railroad across a turnpike, Seneca v. Railroad Co., 5 Hill, 170;
flooding land by excavating for a railway, so that the waters of a river ran
through the cut upon adjoining farms, Robinson v. Railroad Co., 27 Barb.
512. Sec, also, Eaton v. Railroad Co., 51 N. H. 504; Story v. Elevated
R. R. Co.. 90 N. Y. 170.

Still other instances of the taking of private property for public use
are these : By laying a rail for a street railway track within two or three
feet of the sidewalk. Street Railroad Co. v. Cumminsville, 14 Ohio St. 543 ;
changing easement for a canal into an* easement for a railway. Hatch v.
Railroad Co. 18 Ohio St. 92 ; building railroad on road owned by Turn-
pike Co., Railroad Co. "v. Zinn, 18 Ohio St. 417 ; building railroad in public
street. Railroad Co. v, Williams, 35 Ohio St. 169 ; Shurmeier v. Railroad
Co., 10 Minn. 79; placing earth upon land to support an embankment,
Dodson V, Cincinnati, 34 Ohio St. 276 ; cutting ditches in such a manner
as to cause water to overflow and wash away land, Rhodes v. Cleveland,
10 Ohio, 159; People v, Haines, 49 N. Y. 587; building a house in a
street. Corning v. Lawerse. 6 Johns. Ch. (N. Y.) 439 ; flowing or backing of
water upon land, Hooker v. Canal Co., 14 Conn. 146 ; Pumpelly v. Green
Bay Can. Co., 13 Wall. 166; Nevins v, Peoria, 41 111. 502 ; damaging mill
privilege, Emporia v, Soden, 25 Kan. 588 ; an order permitting a plaintiff
in proceedings to condemn land for a public use to enter into possession
of the same during the pendency of the proceedings and until their con-
clusion, San Mateo Water Works Co. v, Sharpstein, 50 Cal. 284.



SOHN & Co.

(41 Ohio State, 691.)

A person who purchases and slaughters hogs, for the purpose of adding
to the value thereof by certain processes and combination with other
materials, — whereby they are converted into bacon, lard and cured meats,
— with a view of making a gain or profit thereby, is a manufacturer, and
taxable as such, under Section 2742 of the Revised Statutes.

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Error to the District Court of Butler County.

Jo/m F. Net/an and Thomas Millikin for plaintiff in error.

Slayback & Shaffer for defendants in error.

DiCKMAN, J.— During the years 1870 and 1880, John W.
Sohn & Co. were a firm engaged in the business of purchasing
Facts. and slaughtering hogs, and packing pork, in the

city of Hamilton, Butler county. They bought and slaugh-
tered hogs, and subjected the same to certain processes and
combination with other materials, requiring the application
of skill, labor, and capital, and converted them into lard
and cured meats, for the purpose of adding to the value
thereof, with the view of making gain or profit. It required
about forty men to carry on the business, which was con-
ducted under several departments, each requiring the super-
vision of a foreman possessed of skill and experience. In
rendering lard, curing sides and shoulders, curing, smoking
and canvasing hams, and packing pork, it became necessary
to use other raw material of various kinds, such as salt, salt-
petre, saleratus, sugar, molasses, flour, chrome yellow, linseed
oil, canvas, wood, paper, barrels, tierces and kegs, and also
to use various tools, implements, and mechanical devices.
The process of curing hams required about three months.
They were then ready for smoking, which occupied from six
to eight days, when they were wrapped, canvased, and dipped
in a mixture, to render them air-tight and proof against atmos-
pheric influences and insects. The different branches of the
business were carried on together in one building. Sohn &
Co. cured all their own meats, and did not deal in meats cured
by others. In former years, those that slaughtered were not
in the packing business, and packers did not slaughter ; but
for several years the two branches of business had been, as
now, combined.

In listing their property for taxation for the year ending on
the day preceding the second Monday of April, 1880, Sohn &
Co. took the greatest value of raw material which they
had on hand on any day in each month of the next preceding
year, and adding those sums together and dividing the aggre-
gate by twelve, listed the quotient, $5130, as their average
stock of manufactures for that year — such raw material being
articles purchased, received or otherwise held, for the pur-

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pose of being used in their packing business. At the time of
listing they did not have on hand any articles which had been
by them manufactured or changed in any way, either by
combination or adding thereto, one year or more previous to
such listing. Subsequently to making their return to the
assessor, the special board of equalization of the city of Ham-
ilton added to the return the sum of $16,067.90, as an addition
** to the monthly average value of pork on hand from time to
time during the year," — thus treating the article as personal
property, purchased in its then existing shape, with a view of
being sold at an advanced price or profit, and thereby com-
pelling Sohn & Co. to list as merchants. Sohn & Co. filed
their petition in the court of common pleas of Butler county,
against the county treasurer, to enjoin the collection of taxes
upon such addition to their return, on the ground that they
should be taxed as manufacturers, and not as merchants ; and
a perpetual injunction was thereupon granted. On appeal by
the county treasurer the district court rendered a like decree
as in the court below, and this proceeding is prosecuted to
reverse the judgment of the district court.

The question for our consideration is, whether upon the
facts in the case at bar the defendants in error were taxable as
merchants or manufacturers. If taxable as manufacturers
only, they were required to return for taxation — as they did —
the monthly average value of the raw material which they
had on hand during the preceding year, in the same condition
in which it was purchased, received or otherwise held for the
purpose of being used by them in their manufacturing busi-
ness- But they were not required to list for taxation such
material in a manufactured or partly manufactured state —
unless manufactured one year or more previous thereto — as it
was not the intention of the legislature to tax the labor, skill
and capital which, when in combination with the raw mate-
rial, produced the manufactured article. Sebastian v, Ohio
Candle Co., 27 Ohio St. 459.

The question therefore recurs, were Sohn & Co., for pur-
poses of taxation, merchants under section 2740, or manufac-
turers under section 2742 of the Revised Statutes? By " Sec.
2740. Every person who shall own or have in his possession,
or subject to his control, any personal property within this
State, with authority to sell the same, which shall have

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been purchased either in or out of this State, with a view to
being sold at an advanced price or profit, or which shall have
been consigned to him, from any place out of this State, for
the purpose of being sold at any place within this State, shall
be held to be a merchant/*

And under " Sec. 2742. Every person who shall purchase,
receive, or hold personal property of any description, for the
purpose of adding to the value thereof by any process of
manufacturing, refining, rectifying, or by the combination of
different materials, with a view of making a gain or profit by
so doing, shall be held to be a manufacturer."

In both definitions there is the common element of purchas-
j^ATOFACT^^ ing personal property, with a view of making a
IJ^5^S^' gain or profit. But the definition of a manufac-
turer contemplates the attainment of such object by adding
to the value of the property after purchase, by some process
or combination with other materials, while the merchant is
supposed to get his advanced price or profit by selling the
article as it is, without subjecting it to any change by hand,
by machinery, or by art. The material entering into the man-
ufactured article may be modified, more or less, in its identity-,
as it passes through the several stages of a manufacturing
process ; but the merchant deals* in the manufactured article
itself, or its constituents, by buying and selling them in the
same condition in which he purchases them. His business is
that of exchanges, and not of making or fabricating from raw

The occupation of the defendants in error was, we think,
poHK PACKER csscntially that of manufacturers. By the use of
HEi^^^MAwu- ^QQjg^ implements, and mechanical devices ; by sub-
jecting the slaughtered animals to divers processes, running —
some of them — ^through several months; by a combination
with various materials and ingredients requiring skill, care
and attention, products were obtained in the form of pork,
lard and cured meats, to which may appropriately be applied
the term " manufactured articles." The original substance,
though not destroyed, was so transformed through art and
labor that without previous knowledge it could not have
been recognized in the new shape it assumed, or in the new
uses to which it was applied. One who produces such results
may as correctly be designated a manufacturer as he who

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buys lumber, and planes, tongues, grooves, or otherwise
dresses the same ; or as he who by a simple process makes
sheets of batting from cotton ; or as he who buys fruit and
preserves the same by canning — all of whom have been held
to be manufacturers, and taxed as such, under the internal
revenue laws of the United States. 9 Internal Revenue
Record, 193; 5 Id. 180; Internal Revenue Decisions, 117,
No. 171. And as to the article of ice, to which reference has
been made in argument, he is not inappropriately termed a
manufacturer who produces artificial ice by the method of
vaporization and expansion. The dressed lumber, cotton bat-
ting, canned fruits, and artificial ice, though but slightly
changed from the original material, could not, we think, be
properly classified as unmanufactured goods. Indeed, the
term manufacture has been extended to include every object
upon which art or skill can be exercised, so as to afford pro-
ducts fabricated by the hand of man, or by the labor which
he directs. Curtis on Pat. § 74.

During the past forty years the business of slaughtering and
meat packing, from a small beginning, has grown to such mag-
nitude that it is now ranked as one of the great industries of
the country. It is placed in our Federal Census among the
mechanical and manufacturing industries of our large cities.
In its different departments the aid of science, and art, and
inventive talent has been . invoked, and new and improved
methods have been devised for facilitating and perfecting its
various processes. " The perfection of manufacturing," it has
been said, " consists in the being able to effect the wished-for
changes in the raw material, with the least expenditure of
labor or at the least cost.'* With such a test alone there
would be no hesitation in ranking this industry, in its present
advanced state, among our most effective branches of manu-

These views, it may be urged, are in conflict with the de-
cision of the court in Jackson v. The State, 15 Ohio, 652. The
facts in that case appear to be meagrely reported. The
appellant, who was a citizen of the State of Pennsylvania,
" engaged in the business of purchasing, slaughtering and pack-
ing pork for transportation and sale,*' at Columbus, Ohio.
Hitchcock, J., was " not prepared to say," that a person so
cj^gaged was a manufacturer within the meaning of the statute.

9 Cor. Gas.— 27

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We are, however, satisfied, that if the facts had been the same
as in the case at bar, if there had been in the year 1846 the
same perfection in the art of packing and curing meats which
has since been reached and now exists, Jackson would have
been held to be a manufacturer and not a merchant

The conclusion to which we have arrived is, that Sohn &
Co. were manufacturers ; that, as such, they made proper
retutn to the assessor of the personal property of the firm sub-
ject to taxation ; that the addition to their return by the board
of equalization was illegal ; and that the district court did not
err in rendering judgment, that the county treasurer be per-
petually enjoined from collecting any tax upon the addition
so made by that board.

Judgment affirmed.

Knickerbocker Ice Company



(99 New York Reports, 181.)

A corporation oi^nized under the act of 1855 (chap. 301, Laws of
1855), extending the operation of the General Manufacturing Act (chap.
40, Laws of 1848), by authorizing the formation of corporations "for the
purpose of collecting, storing, and preserving ice, of preparing it for mar-
ket, of transporting it, . . . and of vending the same," and whose busi-
ness is confined to the purposes expressed in the act, is not a manufactur-
ing corporation, and so is not within the provision of the act providing for
the taxation of certain corporations (§ 3, chap. 542, Laws of 1880, as
amended by chap. 361, Laws of 1881), which exempts manufacturing cor-
porations from the operation of the act, and such corporations are taxa-
able under said act.

The provision of the said act of 1855 (§ 2), giving to the corporations
organized under it the privileges conferred by the act of 1848, was not in-
tended to put them, in all respects, upon the same footing as manufactur-
ing corp)prations, and does not exempt them from taxation. The exemp-
tion is limited to corporations which are in fact manufacturing corpora-
tions, and carry on manufacture.

Appeal from judgment of the General Term of the Su-
preme Court, in the third judical department, entered upon an
order made the first Tuesday of May, 1884, which affirmed a

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judgment in favor of plaintiff, entered upon the report of a
referee. (Reported below, 32 Hun. 475.)

The nature of the action and the material facts are stated
in the opinion.

Matthew Hale for appellant.

D. O'Brien, attorney-general, for respondent.

Danforth, J. — This action was brought to recover State
taxes for the year ending November i, 1881, under the pro-
visions of chapter 542, Laws of 1880, section 3, as facts.
amended (Laws of 1881, chap. 361), and also for the penalty
prescribed (Laws of 1881, supra, § 2), for their non-payment.
The answer, in substance, avers that the defendant " is a man-
ufacturing corporation, carrying on manufacture within this
State," and therefore, exempt from such imposition by the
very terms of the statute {supra). Upon trial of the issue be-
fore a referee, it appeared that the defendant was a corpora-
tion organized under the Manufacturing Act of this State
(Laws of 1848, chap. 40); and in pursuance of an act passed
April 12, 1855 (Laws of 1855, chap 301), to extend the opera-
tion of said act of 1848 ; that its business was ** collecting ice
from the Hudson River and Rockland Lake, storing, preserv-
ing and preparing it for sale ; transporting it to the city of
New York or elsewhere and vending the same," and the ref-
eree found that the defendant was not a manufacturing cor-
poration carrying on manufacture. If this finding is correct,
judgment properly followed the prayer of the complaint.

The business of the defendant is described in language
found in its articles of association, and for the ice compaiit
doing of which it was organized. The perform- tuLr."^^^*^
ance, therefore, corresponds with its license, and while the
phrase by which the incorporation was effected might not be
important, we cannot fail to see that neither it nor its opera^
tions are in any way concerned with the manufacture or sale
of an artificial product. Its dealing is with " ice," as an ex-
isting article, not the manufacture or production of ice by

Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 43 of 73)