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repair, is not obliged to proceed against the borough before he does against the owner, but has his election. Brookville v. Arthurs, 152 Penn. St. 334; 25 Atl Rep. 551.

18. Effect of vote of town to pay claim barred by statute.—Plaintiff, having a claim against the defendant town for injuries by reason of a defective highway, failed to give notice thereof in writing as required by statute, whereby his claim became barred and of no validity. The plaintiff brought an action upon the vote of the town to pay him damages under such circumstances. Held, that no controversy existed between him and the town as to its legal liability, and that the vote is not binding upon the town, whereby an action can be maintained upon it. Clark v. Tremont, 83 Me. 426; 22 Atl. Rep. 378.

MILWAUKEE STEAMSHIP Co. v. CITY OF MILWAUKEE

(Supreme Court of Wisconsin, Dec. 6, 1892.)

1. CORPORATIONS.

WHERE TAXABLE.

"" MEANING OF PHRASE, PRINCIPAL OFFICE," IN TAX LAW. A steamship company owning and employing vessels in business on the lakes had an office outside of the city of Milwaukee, on which was a sign with its name thereon, and at which the annual election of officers was held. No other business was transacted at such office. The president and secretary of the company, as partners, did an insurance and transportation business in Milwaukee. The company's books were kept at their office, and through it all the business and financial affairs of the company were transacted. Held, that the principal office of the corporation was in the city of Milwaukee, and its property was properly assessed for taxation therein.

2. It is immaterial, in such case, that the company's articles of incorporation provide that it shall be located in "and have its principal office" at the place where such annual election of officers was held, since the statute (Rev. St. § 1772) does not authorize a corporation to fix the location of its principal office by its articles of incorporation, but only to state "the name and location of such corporation."

A

CTION by the Milwaukee Steamship Company against the city of Milwaukee to recover certain taxes assessed against and paid by plaintiff under protest. From a judgment for plaintiff, defendant appeals.

Conrad Krez, City Atty., and V. W. Seely, Asst. City Atty., for appellant. Van Dyke & Van Dyke, for respondent.

ORTON, J. The following facts are substantially stated in the complaint: The plaintiff is a corporation of this state, and is conducting the business of owning and employing steam and sail vessels in the general freighting business on the lakes and navig

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able waters connecting them, and at the times herein mentioned owned a large number of such vessels, and employed them in carrying cargoes of iron ore and other cargoes between points and places on said lakes. In its articles of organization, duly made and filed, it is certified and declared, in accordance with § 1772, Rev. St., that the name of said corporation shall be the "Milwaukee Steamship Company." It shall be located in and have its principal office in the town of Lake, in Milwaukee county, but may transact business in and locate such branch office or offices as may be necessary or convenient, and shall be designated by the board of directors at such place or places in any part of the state, or any of the states. At all times herein mentioned the plaintiff had and maintained an office in a building in the town of Lake, in said county, outside the city of Milwaukee, upon which said building was a sign bearing the inscription, "Office of the Milwaukee Steamship Company," at which office in said building the stockholders of the plaintiff held their annual meetings for the election of directors, and also such occasional special meetings were necessary; and there the directors of said plaintiff held their annual meeting for the election of officers, but no other business of said company was ever transacted at said place. And at all other times said office remained in charge of John Saveland, the plaintiff's assistant secretary, who at all times resided in said. building in which said office was located. The manner in which the plaintiff's vessels were employed was as follows: David Vance and Frank L. Vance, copartners under the firm name of David Vance & Co., and engaged in business as fire and marine insurance agents and vessel agents, had an office in the Third ward of said city of Milwaukee, in which was conducted the business of said firm of David Vance & Co. The said firm acted as the agents for plaintiff's vessels among others, and as such agents usually chartered them before the opening of navigation in each year for such season, or for a number of consecutive trips. The vessels so chartered have been principally employed in carrying iron ore from Escanaba and Ashland to Lake Erie ports, with occasional return cargoes of coal. The masters of said vessels attended to the details of the business of the same under their command, collecting freight, paying the usual running expenses, and remitting the balance to the said firm as agents for such vessels. The said

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firm of David Vance & Co., as agents, kept an account of the moneys so received and such disbursements as they made on account of said vessels, and accounted therefor to the plaintiff annually, or as required. At all said times said David Vance was president, and said Frank L. Vance was secretary, of the plaintiff company, and David Vance & Co. were the plaintiff's agents; and the secretary kept an account of the net earnings of the vessels and of the dividends made and paid from time to time. At all said times the plaintiff employed no clerks, bookkeepers or office help, and did not have or occupy any office in the city of Milwaukee, and did not in any manner contribute to the payment of the rent of said office. In the year 1890 all the vessels owned by the plaintiff, and employed as aforesaid, were assessed for the purpose of taxation in said town. of Lake, on the 17th day of December, 1890; and the plaintiff duly paid to the town treasurer of said town all the state, county, school and town taxes levied pursuant to the assessment aforesaid in that year. In said year, 1890, the assessor of the Third ward of the city of Milwaukee also listed said vessels for assessment for the purpose of taxation in said Third ward, and the said vessels were assessed in said ward, and the city tax hereinafter mentioned levied against the plaintiff thereon, notwithstanding the plaintiff duly protested against the same before the assessor and board of review. On the 31st day of March, 1891, the chief of police of the city of Milwaukee, having the warrant authorizing him to collect the delinquent city taxes, demanded the payment of said tax so levied against the plaintiff in respect to said vessels, and, the plaintiff refusing to pay the same, said officer levied upon property of the plaintiff to satisfy the same, whereupon the plaintiff, under coercion of said levy, to save its property, and under protest, paid the city taxes and charges in the sum of $798.37; and said sum has been covered into the treasury of said city. Judgment against the defendant is prayed for the sum of $798.24 and interest, besides costs. The defendant, by answer, either admits or alleges ignorance of the main facts set forth in the complaint, and avers on information and belief that at all the times mentioned in the complaint the plaintiff had kept and maintained an office in the third ward of the city of Milwaukee, at

which said office the plaintiff kept its officers and clerks, all of its general and principal books of account, and its stock-book; and there its officers transacted all of its business, except as herein before admitted, and, save the annual election of directors and officers and special meetings of stockholders, no other business was done or transacted by the plaintiff at its said office in the town of Lake; and at all times, save at the times of said elections and meetings, said office in the town of Lake remained closed, and that no books of account, or any stock book was ever kept in or taken to said office. It will be seen that in respect to these two offices of the company the answer does not much enlarge the averments of the complaint. The complaint states that no business was done in the office in the town of Lake except the annual and special meetings of the stockholders for the election of directors, and the annual meeting of the directors to elect officers; "and no other business of said company was ever transacted at that place." The office in the third ward of the city of Milwaukee was kept by David Vance, the president, and Frank L. Vance, the secretary, of the company; and they were also vessel agents, and acted for plaintiff's vessels, and chartered them each year, or for consecutive trips. The captains of the vessels remitted to them. there the balances after paying the running expenses. The secretary of the company kept there an account of the net earnings of the vessels and the dividends made and paid from time to time. David Vance & Co. were the plaintiff's agents at all times at that office, and kept an account there of the moneys received and the disbursements made on account of said vessels, and accounted to the plaintiff annually therefor. It is a fair inference from the complaint that all the business and financial affairs of the company were transacted, and accounts thereof kept, and everything done by the company that required an office, except the said election meetings, was done at said office in the third ward of the city. The answer states that the plaintiff kept its offices and clerks, all of its general and principal books of account, and its stock book, and transacted all the business of the company at the third ward office, except only such election meetings; and that at all other times the office in the town of Lake remained closed. There is but little, if any, difference between the complaint and answer as to what was done at these two offices. The plaintiff moved to

strike the answer from the files, on the ground of its frivolousness, and the court granted the motion. In present practice this is the same in effect as sustaining the demurrer on the ground that the answer does not state a defense to the action. The court entered an order not only granting the motion, but for judgment in favor of the plaintiff on the pleadings, without leave to answer over, and rendered judgment for the plaintiff.

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We shall treat the order as in effect sustaining the demurrer to the answer. The only question presented is, was "the principal office or place of business" of this corporation in the third ward of the city of Milwaukee, where its property was assessed for the purpose of taxation? If so, that shall be held to be its residence. for such purpose. Sections 1040, 1041, Rev. St. In view of the contention of the learned counsel of the respondent that its "principal office" is fixed by law in the town of Lake, it must be observed that the statute (section 1772, Rev. St.) provides that the corporation, in its articles of incorporation, shall state "the name and location of such corporation,' The articles of this company go further, and state also "that its principal office shall be in the town of Lake, or it shall have its principal office" at that place. This is unauthorized by the statute, and of course of no effect. Its "location," whatever that may mean, may or may not have been properly stated, but as to the place of its principal office the articles are simply void. As a legal conclusion from the facts stated in the complaint and answer there would seem to be no doubt that the pricipal office or place of business of the plaintiff company, when its property was assessed, was in the third ward of the city of Milwaukee. That was the office of its president and secretary and vessel agents. There the accounts were kept of all the business of the company, the net earnings were returned to that office, and the dividends were there made and paid, and the vessels chartered. There the receipts and disbursements of all moneys were made, and the account thereof kept. All the account and stock books were kept there. In short, all the business, financial or otherwise, of the company was done there. The election of directors and officers was held at that house in the town of Lake, and at all other times, as an office for any purpose, it was closed. It could scarcely be seriously contended that the "principal office or place of business.

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