power to exempt or release a person or community of persons from their proportionate share of these burthens." In Jacksonville Trustees v. McConnel, 12 Ill. 138, it was held that, under the constitution, the legislature had no power to exempt one species of personal property from taxation while it collects a tax from another within the same jurisdiction. In the discussion of the question, it is there said: "The constitution of the state expressly declares that the mode of levying a tax shall be by valuation 'so that every person and corporation shall pay a tax in proportion to the value of his or her property. Under this provision the legislature would have no power to exempt from taxation one species of personal property while it collected a tax from another within the same jurisdiction, and it is never to be presumed that the legislature intended to pass a law which should be contrary to the constitution either in its letter or spirit." See also Jack v. Weiennett, 115 Ill. 105, 56 Am. Rep. 129; and Hayward v. People, 145 Ill. 55. section 3 of article 9 should be relieved from its share of taxation would be in conflict with the constitution. That section of the constitution is as follows: "Sec. 6. The general assembly shall have no power to release or discharge any county, city, township, town or district, or the inhabitants thereof, or the property therein, from their or its proportionate share of taxes to be levied for state purposes, nor shall commutation for such taxes be authorized in any form whatsoever." If the legislature has no power to release any county, city, township, town, or district, or the inhabitants thereof, or the property therein, from their or its proportionate share of taxes, as declared by this section of the constitution, upon what ground can the legislature pass an act providing that the stock and notes of a loan and homestead association located in Joliet or in any other city or town shall not be subject to taxation? But it is insisted that it is not the duty of the legis lature, under the constitution, to require all Under section 1 of article 9 of the Consti- property to be assessed for taxation, and, tution, we think it is plain that the burdens under the policy adopted under the constiof taxation were intended to be cast equally tution, certain property has been exempted. upon all the property of the state, of every In the argument three instances are given: description. Where revenue is needed, a tax First. That the shares of stock of corporais required to be levied on a valuation so that tions organized under the laws of the state, every person and corporation shall be re- which are property, are exempt from taxation. quired to pay a tax in proportion to the value Second. While credits are property, taxof his, her, or its property. Uniformity of payers are permitted, in making their assesstaxation on all property was the cardinal ment, to deduct debts from such credits, and principle of that section of the constitution, thus a portion of the credits are exempted. and had it not been for the adoption of sec- Third. Bills receivable and other credits due tion 3 of article 9 the legislature would have to a bank, banker, broker, or stockjobber are had no power in any case to enact a law ex- property which might be taxed, yet they are empting any property from taxation. But, not taxed under the general revenue laws of under section 3, property of the state, coun- the state. The argument of counsel is quite ties, and other municipal corporations, both plausible, but we do not regard the position real and personal, and such other property as assumed as sound. There is a well-defined may be used exclusively for agricultural and and broad distinction between the real subhorticultural societies, for schools, religious, ject-matter of taxation and the mode or mancemetery, and charitable purposes, may be ner in which such taxation is to be levied. exempted from taxation, but such exemption Section 1 of article 9 of the Constitution shall only be by general law. Here power provides that the general assembly shall prois conferred on the legislature, in certain vide such revenue as may be needful by specified cases, to exempt certain property levying a tax by valuation so that every perfrom taxation. The section enumerates cer- son and corporation shall pay a tax in proportain specified property which the legislature tion to the value of his, her, or its property. may, by general law, exempt. In the con- Here is a plain provision requiring the revstruction of statutes, it is a well-understood enue to be raised by levying a tax on all rule that the enumeration of certain speci- property in proportion to value. But this is fied things which may be exempted excludes followed by a further provision, which all others not therein mentioned. Section 3 allows the legislature to decide the manner is therefore a limitation in the power of the in which property may be valued, and the legislature. The enumeration in that section manner in which the tax may be levied. of certain specified property which may be These are matters within the discretion of the exempted is a clear limitation upon the power legislature, but the subject-matter of taxation of the legislature to exempt any other prop- has been determined and established by the erty. Shares of stock of homestead loan as- constitution, and what may be exempted is sociations and notes taken by such associa- therein specified, and the legislature has no tions do not fall within the property which power to go beyond the exemptions named in the legislature was authorized to exempt the constitution. While it may be conceded from taxation, and it seems plain that the that the interest of a corporation in the corsection of the act of the legislature is in con- porate property and the interest of the stockflict with the constitution. Moreover, sec- holder in the corporation are separate intion 6 of article 9, in plain and unambiguous terests, yet in reality they both represent one language, prohibits the legislature from re-thing,—the money invested in the corporaleasing property from its proportionate share of taxes, and any law which provided that any property other than that contained in tion by those who organized and created it. It would therefore be manifestly unjust to impose a tax on the corporation itself, and at the same time impose a tax on the shares of stock. Such a course would, in effect, require money invested in a corporation to pay double taxation. It would be repugnant to the principle of equality and uniformity in taxation enjoined by the constitution; and had the legislature attempted to require a corporation organized and doing business under the laws of this state to pay a tax on its corporate property, and at the same time require the shares of stock issued by the corporation to be taxed, the validity of a law of that character might well be doubted. In view of these facts, the legislature, under the power conferred by the constitution to regulate the manner of ascertaining the fair valuation of property subject to taxation, and the mode to be adopted in the assessment, has provided by general law that the whole assessment shall be made against the corporation. In doing this the legislature did not intend to exempt any property from taxation, and no property was exempted from taxation. The legislature, in order to avoid confusion and complication in the assessment, determined, as it had the right to do, that the whole tax should be collected from the corporation itself. In adopting this mode of assessment, no property was exempted from taxation, but the whole burden was cast on the corporation, leaving it to adjust the matter between itself and its stockholders as it might think best. In considering this mode of assessment, in Ottawa Glass Co. v. McCaleb, 81 Ill. 559, it is said: "The general assembly has provided that, where the tangible property or capital stock of a corporation is assessed for taxation, the shares shall not be assessed against the holders thereof. Thus, it is seen that the shareholders, under this provision, escape taxation on their individual shares, when the company list their tangible property as capital stock. We perceive no excess in the exercise of power by the general assembly in making this provision. The company, through their directors, in exercising the franchise and managing the business for the stockholders, act as quasi trustees; and their relation to each other is so close in the management of the corporation, their business and property thus held and managed, that no reason is perceived why the general assembly, if they believe that such a mode is better calculated to prevent the shares from escaping their just proportion of taxation, may not require the taxes to be paid by the corporation, and collected by them of the shareholder, by deducting the amount from his dividends or otherwise." In the case cited, there is no intimation that the legislature, in adopting the mode of taxation it did in regard to corporations, either directly or indirectly exempted any property from taxation; and we see no reason now to change the conclusion there reached. As respects credits and the deduction authorized by the statute of bona fide debts of the person or corporation assessed from such credits, we do not understand that operation of the statute exempts property from taxation. Section 27 of the Revenue Statute (chap. 120), which authorizes the deduction of debts from credits, is as follows: "In making up the amount of credits which any person is required to list for himself, or for any other person, company, or corporation, he shall be entitled to deduct from the gross amount of credits the amount of all bona fide debts owing by such person, company, or corporation to any other person, company, or corporation for a consideration received.' It may be conceded that credits are property, but if a taxpayer holds a promissory note of $1,000 against A., and at the same time is indebted to B. in the sum of $1,000, he has no credits. If A. borrows of B. $1,000, and loans the same money to C., can it be said that A. has property of the value of $1,000, or, in other words, is he worth $1,000? The method adopted by the legislature in requiring credits to be assessed was intended to reach such credits as the taxpayer possessed, and the only just mode that could be adopted was one allowing all bona fide debts to be deducted, leaving the balance in his bands liable to be taxed; and, in our judgment, the adoption of this mode of assessment of credits exempts no property from taxation. As to deductions allowed in the case of bankers, brokers, and stockjobbers, they stand upon the same footing. The statute authorizes the amount of deposits and the amount of accounts payable to be deducted from the bills receivable and other credits and interest due the bank. This is a method under which it may be determined what the just and true amount of credits is, held and owned by the bank, which should be assessed as property. The legislature, in providing this mode, did not intend to exempt any property of any description, but only adopted a plan under which the true and real amount of property held and owned could be ascertained. The deposits held by a bank and its accounts due represent the indebtedness of a bank; and, in order to determine the real credits owned by the bank, these items should be deducted from the bills receivable, and a statute authorizing this to be done does not, in our opinion, exempt any property from taxation. It is only a method adopted by which the true credits held and owned may be ascertained and determined. It is also claimed that the power of the legislature over the subject of taxation of corporations and their property does not fall within the limitation prescribed by the first clause of section 1 of article 9 of the Constitution, but under the last clause of that section, -that the legislature has authority to tax or not to tax the property of corporations, as it may in its discretion deem proper. In arriving at a construction of section 1, the two clauses of the section must be considered together, and the entire section must be considered in connection with sections 2 and 3 of the same article. When this is done, we think it is plain that the framers of the constitution intended that all property should be taxed, except such as the legislature was authorized to exempt by section 3; that it was not intended by the second clause to permit any property belonging to the corporations to be exempted from taxation by the legislature, but the legislature was only authorized to adopt a different method for the assessment erty, -once on the real estate mortgaged, and again on the credit arising from the loan; and the result is double taxation. We do not concur in this view. Where a person owning a farm procures a loan, and mortgages the land, it is subject to taxation as the property of the owner, and the note and mortgage are subject to taxation as a credit in the hands of the person loaning the money; and, where a loan is procured from a homestead loan association, the borrower and the association occupy a similar position; and, if the note and mortgage and the land upon which the mortgage is given are both taxable in the one case, we see no good reason why they should not be in the other. The note (or contract) and mortgage held by a loan association are in no sense a credit of the borrower, but it is a credit belonging to the corporation. If the credit is taxed, the tax falls on the corporation, and not upon the borrower. It is true that a portion of the tax may ultimately fall on the borrower, as a stockholder of the corporation; but that amount, whatever it may be, falls upon him as a stockholder, having an investment for profit in a corporation. of such property if it was thougl t proper to do so. By adopting the construction contended for, the first clause of section 1, which requires equality and uniformity, would not only be abrogated, but the legislature would have unlimited power to exempt large amounts of property of corporations, while the same property in the hands of individuals would be liable to taxation. Much reliance in the argument is placed on Sterling Gas Co. v. Higby, 134 Ill. 557. But in that case it was not claimed that the property assessed was exempt from taxation. Whether the legislature had the power to exempt the property of a corporation under the second clause of section 1 did not arise in that case, nor was that question decided. It was held in that case that the power to impose a tax upon the capital stock and franchise of a corporation formed for pecuniary profit was not confined to the first clause of section 1 of article 9 of the Constitution, and the second clause was not confined to occupations, but also applied to property rights. But the question here involved was not considered nor decided; and the same is true of the other cases cited. It is also claimed in the argument, if the In conclusion, we think that the associa corporation is taxed on the obligations it tion was liable to be assessed by the assessor holds against borrowers, the borrowing stock-and the decree of the Circuit Court will be afholder will be taxed twice on the same prop- 'firmed. IOWA SUPREME COURT. of which it would be taken into different places, as harness, wagons, horses, wearing ap parel, buggies, etc. Words descriptive of location might, as to one class of property, or as to one kind of insurance, be treated as a statement of a fact relive-lating to the risk, and as amounting to a stipu lation or condition that the property should remain there; while as to the other class of property or as to the kind of insurance, it might be construed as mere description for the purpose of identification. Insurance on farming utensils and stock on described premises occupied by the assured, and on hay in stacks, does not cover such property when taken temporarily for the purpose of plowing to a place twenty miles distant, especially where the application which is made part of the policy asks for insurance on live-stock "while on the premises only." (April 6, 1895.) APPEAL by plaintiff from a judgment of the District Court for Plymouth County in favor of defendant in an action brought to recover the amount alleged to be due on a policy of fire insurance. Affirmed. DeGraff v. Queen Ins. Co. 38 Minn. 501; Holbrook v. St. Paul Fire & Marine Ins. Co. 25 Minn. 233; Merrill v. Agricultural Ins. Co. 73 N. Y. 458, 29 Am. Rep. 184; Koontz v. Hannibal Sav. & Ins. Co. 42 Mo. 126, 97 Am. Dec. 326. with reference to the property to which they The words which are used must be construed are applied. McCluer v. Girard Fire & Marine Ins. Co. 43 Iowa, 351, 22 Am. Rep. 249. The facts are stated in the opinion. Messrs. Zink & Roseberry, for appellant: horse, harness, buggy, and phaeton, as conWhere a person procures a policy upon his This application and policy were each detained in a certain barn, the presumption must signed to include three kinds of property: be that they are in use, and that the policy is (1) buildings on real estate; (2) personal prop-issued with reference to such use. erty from the nature and use of which it lbid. would be in contemplation of the parties confined to one location, as household goods, a stock of groceries, dry goods, hardware, etc.; (3) personal property, from the nature and use NOTE.-For location of movable property as affecting insurance, see note to Benton v. Farmers Mut. F. Ins. Co. (Mich.) 26 L. R. A. 237. limiting the appellant's use of the property If there is no express provision in the policy destroyed to the premises described therein, and limiting the liability of the appellant in case of loss to the same, the law will not imply one. Peterson v. Mississippi Valley Ins. Co. 24 See also 39 L. R. A. 545; 43 L. R. A. 838. The character of the property insured must be considered in determining the true construction of the policy. Longueville v. Western Assur. Co. 51 Iowa, 554, 33 Am. Rep. 146. Policies of insurance, unless the language excludes the presumption, must be presumed to be made with reference to the character of the property insured, and to the owner's use of it in the ordinary manner, and for the purposes for which such property is ordinarily held and used. Holbrook v. St. Paul Fire & Marine Ins. Co. 25 Minn. 233; McCluer v. Girard Fire & Marine Ins. Co. supra. Iowa, 497, 95 Am. Dec. 748; Mills v. Farmers | and other property for the term of five years. Ins. Co. 37 Iowa, 401; Longueville v. Western During the life of the policy a portion of the Assur Co. 51 Iowa, 553, 33 Am. Rep. 146; property which it was designed to cover, McCluer v. Girard Fire & Marine Ins. Co. consisting of three horses, one colt, harness, supra. a plow, plow tongue, neck yoke, and whiffletree twenty bushels of corn, and half a ton of hay, was destroyed by fire. The policy was issued on an application which asked for insurance on "reapers, mowers, harvesters, and farming utensils (excepting threshing machines), wagons, buggies, and harness in buildings on premises; on grain in granaries, or in barns, in cribs, or in dwelling; on horses, mules, and colts while on premises only, and against loss by lightning while at large. Situated on Sec. 4, Twp, 93, Range 46, county of Plymouth, Iowa." The application also contained the following: "I warrant the foregoing application to contain a full and true description and statement of the circumstances, conditions, situation, value, incumbrance, occupation, and title to the property hereby proposed to be insured in the Phenix Insurance Company; and I warrant the an swers to each of the foregoing questions to be true. The property was described in the policy as it was in the application, excepting that the policy insured horses, mules, and colts on premises, and against loss by lightning while at large." The policy also contained a provision, following the specifications of the property insured and referring to it, which is as follows: "Situated (except as otherwise provided) on and contined to premises actually occupied by the assured, to wit, leased acres. Sec. 4, Twp. 93, Range 46, Plymouth county, Iowa." The policy was based on the application, every statement of which was made a warranty, and a part of the policy. When the policy was issued, and when the loss occurred, the plaintiff was a farmer, and kept and used the property de The parties to this policy must be presumed to have had all the facts incident to the use of the property in view when they made the con tract. DeGraf v. Queen Ins. Co. 38 Minn. 501; Noyes v. Northwestern Nat. Ins. Co. 64 Wis. 415, 54 Am. Rep. 631. The assured had the right to use his property in the usual manner and for the usual purposes for which he kept the same, and if the loss occurred while so using the property, though in a place other than that mentioned in the policy, and the risk be increased thereby, the assured can recover, unless there is some thing in the policy which clearly changes this rule. McCluer v. Girard Fire & Marine Ins. Co. 43 Iowa, 350, 22 Am. Rep. 249; Peterson v. Mississippi Valley Ins. Co. 24 Iowa, 495, 95 Am. Dec. 748; Mills v. Farmers Ins. Co. and Longueville v. Western Assur. Co. supra; Everett v. Continental Ins. Co. 21 Minn. 76; Holbrook v. St Paul Fire & Marine Ins. Co., Noyes v. Northwestern Nat. Ins. Co. and Destroyed, excepting the hay and corn, in his Graff v. Queen Ins. Co supra. When a policy of insurance contains contradictory or ambiguous terms, or leaves room for construction, rendering its meaning doubtful, the courts always resolve the doubt in favor of the assured, and against a construction which makes the statements of the insured a warranty. Indiana Farmers Live Stock Ins. Co. v. Rundell, 7 Ind. App. 426; Phenix Ins. Co. of Brooklyn v. Pickel, 119 Ind. 155; Fitch v. American Popular L. Ins. Co. 59 N. Y. 565, 17 Am. Rep. 372; Rogers v. Phenix Ins. Co. of Brooklyn, 121 Ind. 570; First Nat. Bank of Kansas City v. Hartford F. Ins. Co. 95 U. S. 673. 24 L. ed. 563; Moulor v. American L. Ins. Co. 111 U. S. 335, 28 L. ed. 447; No thwestern Mut. L. Ins. Co. v. Hazelett, 105 Ind. 212, 55 Am. Rep. 192; Carson v. Jersey City Ins. Co. 43 N. J. L. 300, 39 Am. Rep. 586. Messrs Sammis & Scott for appellee. Robinson, J., delivered the opinion of the court: The material facts shown by the petition nd admitted by the demurrer are substantially as follows: The defendant issued to the plaintiff a policy insuring him against loss or damage by fire on household furniture The business, and was so using it at the time it was destroyed. At that time all of the property in question was on section 26, in township 92 north, of range 48, in Plymouth county, nearly twenty miles from the place described in the policy. All of it, excepting the hay and corn, had been taken there temporarily for the purpose of plowing. The colt was with its dam, and the bay and corn were for use in feeding the horses. ground upon which the demurrer was sustained was that the policy covered the property destroyed only while it was on the premises described in the policy, and not at the place where the loss occurred. The appellant contends that the character of the property insured must be considered in determining the true construction of the policy; that, unless the language used prevents, the presumption is that the policy was issued with reference to the character and probable use of the property; and that, while it was used in the manner and for the purposes contemplated by the parties, the policy continued in force. He further contends that the policy does not limit the use of the property to the premises described in the policy. In Peterson v. Mississippi Valley Ins. Co., 24 Iowa, 494, 95 Am. Dec. 748, the property insured was Twp. 99, R. | ordinary use, and could not have been contemplated by the parties when the insurance was effected. We conclude that the demurrer was properly sustained. J. B. MENTZER v. UNION TELEGRAPH CO., (........Iowa.........) 1. The person to whom a message was addressed may maintain an action for damages sustained by him on account of negligence in its delivery. 2. Damages for mental suffering inde pendent of any physical injury may be recovered for negligence in delivery of a telegram the character of which is known to the telegraph company. (Kinne, J., dissents.) (February 9, 1895.) APPEAL by defendant from a judgment of the District Court for Linn County for $100 in favor of plaintiff in an action brought to recover damages for defendant's negligent failure to deliver to plaintiff a telegram informing him of the death of his mother. Affirmed. "The facts are stated in the opinion. Messrs. Mills & Keeler for appellant. described as "situated Sec. 22, Deemer, J., delivered the opinion of the court: There was testimony tending to show, and the jury may well have found: That on the 11th day of April, 1892, one H. Dorn delivered to the defendant, at Creston, Ohio, to be transmitted to plaintiff, at Cedar Rapids, Iowa, the following telegraphic message: "Creston, Ohio, 11, 1892. To J. D. Mentzer, Cedar Rapids, Iowa. Mother dead. Funeral Wednesday. Answer if coming or H. Dorn." That Dorn paid the regunot. lar charges for transmitting the same, and, at the time of the delivery of the message, informed defendant's employé in charge of the office at Creston that it was plaintiff's mother who was dead. That the message reached defendant's office at Cedar Rapids at 9:16 A. M., April 11, 1892, but, through the negligence and carelessness of defendant's employés, was not delivered until 9 P. M., April 13th. The plaintiff inquired at defendant's office at Cedar Rapids at about 7 o'clock in the evening of April 11th, and was informed there was nothing there for him. It is shown beyond dispute that plaintiff's mother died at Creston, Ohio, on April 11, NOTE.-The above is a notable and powerful re inforcement of the authorities in favor of allow ing damages for mental anguish in telegraph cases. Most of the recent cases in states where the question was new have been on the other side. See Francis v. Western U. Teleg. Co. (Minn.) 25 L h A. 406, and cases and note there referred. See also 32 L. R. A. 735; 39 L. R. A. 463; 45 L. R. A. 160. |