This is a proceeding to recover backtaxes on personal property of the plaintiff in error, hereafter called the defendant. He pleaded that he did own certain barrels of whisky which he did not list for the years in question, but that he had exported them to Bremen and Hamburg, in Germany, for sale abroad, and that the state was forbidden to tax them, both because they were exports (U.S.C.onst. art. 1, § 10), and because their permanent situs was outside the state. 14th Amend.; Delaware, L. & W. R. Co. v. Pennsylvania, 198 U.S. 341, 49 L. ed. 1077, 25 Sup. Ct. Rep. 669; Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194, 50 L. ed. 150, 26 Sup. Ct. Rep. 36, 4 A. & E. Ann. Cas. 493. The plaintiff replied, denying that the export was for sale and that the situs of the whisky was abroad. It alleged that the defendant was a citizen and resident of Kentucky, engaged there in the wholesale whisky business, and that he shipped the whisky to Germany merely to evade revenue and ad valorem taxes on the same. It alleged further that the defendant remained the owner and in possession of the whisky, except such portion as he reshipped to himself or to purchasers in the United States; that while the whisky remained in the German warehouses he held the warehouse receipts, used them as collaterals and traded in them, and that the barrels of whisky sold by him were mostly returned to the state of Kentucky, and all to the United States. The court of first instance held that the whisky was exempt on both the grounds taken by the defendant. On appeal to the state circuit court for the county, the judgment was affirmed on the ground that the situs of the whisky was outside the state. A further appeal was taken to the court of appeals, and that court, accepting the fact that the whisky was beyond the taxing power of Kentucky, nevertheless sustained the tax as a tax on the warehouse receipts. 30 Ky. L. Rep. 451, 98 S. W. 1040, dissenting opinion, 31 Ky. L. Rep. 535, 102 S. W. 810. The case then was brought by writ of error to this court.
We think that we have stated the effect of the pleadings fairly, and it will be observed that the plaintiff's claim was of a right to tax the whisky, the warehouse receipts being mentioned only to corroborate the plaintiff's contention as to the true domicil of the goods. After the decision, the amount of whisky for which the defendant held German warehouse receipts at the material times and the value of the whisky were agreed, and thereupon the court, reciting the agreement, directed a judgment for taxes due upon the warehouse receipts, valuing them at the agreed value 'per barrel of whisky embraced in them.' So that it will be seen that the effect is the same as if the whisky itself had been taxed, and the question is whether, by such a dislocation of the documents from the things they represent, a second property of equal value is created for taxing purposes, which can be reached although the first could not. Possibilities similar in economic principle sometimes have to be, or at least have been, recognized, but, of course, economically speaking, they are absurd.