author: Frazier, J.

text:
    (Seventh Circuit — Jefferson Co., O., Circuit Court,
    Nov. Term, 1896.)
    Before Frazier and Burrows, JJ.
    HENRY C. SHERARD, ET AL., EXECUTORS, v. BARNET N. LINDSAY, TREASURER.
    Taxation— Valuation of judgment—
    1. A judgment in reference to which a proceeding in error is pending should be appraised for taxation at its true value in money at the time the owner should have listed it, and not at its nominal value. Same — Value fixed by Board of Equalization conclusive—

      2. Where the Annual City Board of Equalization, having jurisdiction, affix the value of such judgment at one half its nominal value, in the absence of fraud, its action is conclusive.

      Same — Authority of Go. Auditor to add to valuation of judgment as fixed by Board of Equalization—
    3. The county auditor, after such judgment is affirmed by the Supreme Court, is[not authorized under the power conferred by sections 2781 and 2782, Revised Statutes, to add to the tax list for the years the value was thus fixed, the difference between such valuation and its nominal value, and to such amount, so ascertained, add fifty per centum,and multiply the sum thus increased by said penaltyJjy the rate[of taxation belonging to said year or years.
    Same—
    1. Held: Under the facts in this case the value fixed by the annual city board was]its fair cash value at the time it was so fixed.

      Failure to state in tax return money converted into non-taxable funds during year—
    5. Where a taxpayer [refuses or neglects to make a return of “the monthly’average amount or value, for the time he held or controlled the same, within the preceding year, of all moneys, credits or other effects within that time invested in or converted into bonds or other securities of the United States or this state, not __ taxable,to the'extenthe may hold or control such bonds or securiites on said day preceding the second Monday of April,” as required by paragraph 16, section 2737, Revised Statutes, the county auditor[may, under the power conferred by sections 2781 and 2782, Revised Statutes, place the same on the tax duplicate for thejyear it should have been returned, with fifty per centum added thereto.
    AppeaFfronNthe [Court of Common Pleas of Jefferson county.
   Frazier, J.

This is an action brought by the executors of Robert Sherard Jr. to enjoin the collection of taxes placed upon the duplicate against his estate by the county auditor, claiming to act under the power confered by sections 2781 and 2782 Revised Statutes.

Sherard was the owner of certain shares of the capital stock of The Pittsburgh, Cincinnati & St. Louis Railway Co. These shares or stocks were part of them owned by him before, and part purchased after April, 1890. After April, 1890, negotiations were entered into for the consolidation of such railway with others, to be known as The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, and resulted in such consolidation.

Sherard refused to convert his stock into the stock,of the consolidated company, and he and the directors of the company being unable to agree as to the value of such stock, the parties submitted the question to arbitration, which fixed the value at $60 per share of $50 each, and subsequently such proceedings were had on appeal that an issue was made as to the value of the stocks and tried to a jury in the court of common pleas, which found the value of the stock to be $65 per share. A motion by the railway company to set aside the verdict was overruled,and judgment given in favor of Sherard; a bill of exceptions taken embodying all the evidence, proceedings and rulings; a petition in error filed in the circuit court, which, in November, 1891, affirmed the judgment of the common pleas (one judge dissenting). The case was taken on error to the Supreme Court, where, January 16, 1894, the judgment of the circuit court was affirmed (two of the judges of the court dissenting). See Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Robert Sherard, Jr., 31 Weekly Law Bulletin, 56.

The provisions of the statute so far as necessary to examine, under which this assessment or taxation is made, are:

“If any person whose duty it is to list property or make a return thereof for taxation, either to the assessor or county auditor, shall, in any year or years make a false return or statement, the county auditor shall, for each year, ascertain, as near as practicable, the true amount of personal property, moneys, credits, and investments that such person ought to have returned or listed for not exceeding the five years next prior to the year in which the inquiries and corrections provided for in this and the next section are made; and to the amount so ascertained for each year, he shall add fifty per centum; multiply the sum or sums thus increased by said penalty, by the rate of taxation belonging to said year or years, and accordingly enter the same on the tax lists in his office, giving a certificate therefor to the county treasurer, who shall collect the same as other taxes.”

In 1891, 1892 and 1893 Sherard in bis returns to the assessor did not affix any value to these stocks, but went before the City Board of Equalization, and represented to them that he held the stocks, and asked that they affix an amount or value to them. The pertinent inquiry in this case is, whether there has been upon the part of Sherard any fraudulent act, either of commission or omission, such as would make him liable under the sections of 2781 and 2782. Has he in either of these years made a false return, or failed to make a return, within the meaning of the law?

Certain machinery is provided by statute for the taxation of property. One of these provisions is, that every person of full age and sound mind shall list the property of which he is the owner. The Revised Statutes, 2804 and 2805,provide for annual county and city boards of equalization. Sherard was a resident of the city of Steubenville in which there was an annual city board of equalization in each of said years with power to hear complaints.

Each member of said Board is authorized to administer oaths, and said board is empowered to call persons before them, and examine them,under oath, in regard to their own or others’ property, moneys, credits and investments, and the value thereof, and to equalize the value of real and personal property, moneys, credits and investments within such city, and to order any property, credit or investment to be placed on the duplicate for taxation, and fix the value thereof, according to law, which has not been listed for taxation, and to increase the value of such property, moneys, credits or investments as have been in their judgment listed at less than their true value in money.

Sherard did not state the value of the stocks,or the judgment founded on them, in his annual return to the assessor, but stated therein the fact that he owned them, and on account of the litigation, he asked that the annual board of equalization affix the value,and he did go before that board, and it did act in the premises and affixed the value in each year at twenty-five dollars for each share of fifty dollars par value. What is the effect of such action? Was the conduct of Sherard fraudulent, or is the action of the board legal and final, is an important and controlling question in the case now before the court, and a new one in this state, although we have some decisions which bear upon the question.

In the case of Wagoner v. Loomis, 37 Ohio St., 571, the second proposition of the syllabus is:

“As a general rule, the decisions of officers and tribunals specially created and charged, in tax laws, with the duty , of valuing property for taxation and equalizing such valuations, are final and conclusive.

And on page 582, McIlvaine, J., in delivering th.e opinion of the Court, says:

“Our statutes have made ample provision for the correction of mistakes and errors of judgment,committed by those intrusted,in the first instance, with the fixing of values upon taxable property. Even unjust and corrupt discrimination can be relieved against, in the special tribunals provided by the statute, for the equalization of values. As a general rule, the decisions of these boards must be held to be final and conclusive. To these boards, and not to the courts, must complaints as to inequalities in valuations be preferred. True, the attention of the auditor was called to the fact, that the valuation of these bank shares was higher in proportion to their value than the valuation of other property in the county; but there is nothing in the record to lead us to the belief that the annual city and county board of equalization would not, if complaint had been made, have advanced the valuation of all other property in the county, to its true value in money, The opportunity provided by law for the correction of the inequality complained of, was omitted. We cannot correct it now. And if for such reasons relief can be given to the plaintiff, we can 3ee no reason why the like relief should not be given to every taxpayer of the state, whose property has been assessed od more than forty per cent, of its value, evento the destruction of the revenues of the state.”

Upon this same point as to the conclusiveness of the action of boards of equalization, is the case of Stanley v. Supervisors of Albany, 121 U. S. 535. The second proposition of the syllabus is:

“When the statutes of a state provide a board for the correction of errors and irregularities of assessors in the assessment of property for the purposes of taxation, the official action of that body is judicial in character, and its judgments are not open to attack, collaterally,”

And on page 550, Justice Field, in delivering the opinion of the Court, says:

“To these boards of revision, by whatever name they may be called, the citizen must apply for relief against excessive and irregular taxation, where the assessing officers had jurisdiction to assess the property. Their action is judicial in its character. They pass judgment on the value of the property upon personal examination and evidence respecting it. Their action being judicial, their judgments in cases within their jurisdiction are not open to collateral attack. If not corrected by some of the modes pointed out by statute, they are conclusive, whatever error may have been committed in the assessment. As said in one of the cases cited, the money collected on such assessment cannot be recovered back in an action at law, any more than money collected on an erroneous judgment of a court of competent jurisdiction, before it is reversed.

To the same effect, is 25 American and English Encyclopaedia of Law, on page 261:

“The acts of boards of equalization and review, in passing upon assessments, are judicial in their nature, and their determination is conclusive and cannot be attacked collaterally, unless their action or determination is impeached on the ground of fraud, or because of a want of jurisdiction.”

And in a note on the same page:

“Where a question of valuation has once been regularly referred to the proper board of equalization, the valuation of that tribunal is final. Texas etc. R. R. Co. v. Harrison county, 54 Tex. 119.”
' “The courts cannot substitute their judgment for that of the board,” State Railroad Tax Cases, 92 U. S., 575.” “And money collected on an assessment which has been passed upon by a board of review, cannot be recovered back in an action at law any more than money collected on an erroneous judgment of a court of competent jurisdiction before' it is reversed, Stanley v. Albany County, 121 U. S., 535.”

But it is claimed|that the case of Gager, Treas. v. A. W. Prout et al., 48 Ohio St., 89, is in opposition to this doctrine.

The fifth proposition of the syllabus is:

“Proceedings had before a board of equalization cannot be pleaded as an adjudication in bar of proceedings before a county auditor for the correction of returns under the provisions of sections 2781 and 2782, Revised Statutes.”

It is a familiar and well recognized rule that the syllabus of the case, which in this state is agreed to by the members of the court concurring in the opinion, and is the law of the case, must be read in the light of the circumstances and facts of each particular case.

Let us then, examine what was the case in which this syllabus is announced as the law applicable to that case.

The third defense in the answer is:

“That at the time when the returns of personal property were made for taxation for the said years above named, Mary Barney was in full life,and returned her property,and all of it, for taxation, and that during each of said years an annual board for the equalization of real and personal property, in the city of Sandusky, which is a city of the second c’ass, equalized the value of the real and personal property, moneys and credits within said city, and added to and deducted from the valuation of all personal property, moneys and credits returned by the assessors therein, and which were omitted by said assessors, and heard evidence for the purpose of adding other items omitted from said returns, and that in each of said years the said Mary Barney was notified to appear before said board, as was required by law; and she did appear, in person, or by her duly authorized agent.
“And testimony was heard bearing upon her returns of personal property, and her returns of personal property were duly passed upon by said board, and the amount and value of her personal property was equalized by'said board,and all questions arising upon or under the same were heard by said board, and by them fully settled and adjudicated.
“Wherefore defendants say that by reason of such adjudication the auditor of Erie county had no jurisdiction to add, either with or without evidence, any sum whatever to her returns, or to the tax duplicate against her on her estate, and that the attempt by him to do so is an attempt to pass upon and determine precisely the same questions that were passed upon and determined by the city board of equalization of the city of Sandusky, acting within their authority and power.

On page 93 is the reply to this defense:

“For reply to the third defense, plaintiff admits that for the years above named, the said Mary Barney was in full life, and also admits that for said several years a board of equalization of real and personal property was in session in the city of Sandusky, which is a city of the second class-Plaintiff denies each and every other allegation in said third defense.’’

On page 111, Minshall, Judge, in delivering the opinion of the Court, says:

“It is also claimed that the claim that Mary Barney had omitted taxable property had been heard and passed upon by the board of equalization of the city of Sandusky, and was therefore adjudicated. The records cf this board show that some small additions were made to her returns for the years 1884, 1885 and 1887, but they do not show that any of the matters now in dispute were adjudicated and determined by it. But the powers possessed by that board are very different from the jurisdiction conferred on the auditor by section 2781. The board is a part of the machinery provided for the assessment and taxation of property; and false returns or statements made to it may be corrected by the auditor under sections 2781 and 2782, as well as those made to the several assessors, so that what may be done before a board of equalization cannot be plead as a bar to the auditor under section 2781, to correct a false return made by a property owner. ”

We see what the character of the case of Gager,Tres’r. v. Prout,was upon which this law was announced.

Hence it becomes an important inquiry what is a false return within the meaning of section 2781, upon which the auditor may act, notwithstanding there is an annual board of equalization, having authority to, and which did act upon the question.

It is a familiar rule that proceedings any may be vitiated for fraud, and that where a party is guilty of fraud, he or those who claim under him, may not reap its benefits.

Upon the question as to what is a false return, we have been referred to the case of Ratterman, Treas. v. Ingalls, 48 Ohio St., 468. The first proposition of the syllabus is:

“In order to render a return made by a taxpayer to the assessor of property for taxation, ‘a false return,’ within the meaning of original and amended section 2781,. Revised Statutes, there must appear, if not a design to mislead or deceive on the part of the taxpayer, at least culpable negligence.”

And on page 486, Spear, Judge, says:

“In Insurance Co. v. Capellar, 38 Ohio St., 560, the company disclosed the real facts to the auditor- by returns on the blanks furnished, but deducted its re-insurance fund as a debit from its credits, and returned the balance for taxation. The auditor proposed to correct these returns under section 2781, for five years, and the suit was to enjoin this proposed action.
“As made by the company, the statements were unquestionably erroneous. The claim was made in argument by the learned Attorney General, that the returns were false, and he argued, as is urged here,that the word ‘false’ meant ‘not true;’ that the returns did not comply with the statutes, and hence were ‘false.’ This was denied by counsel for the company, (now one of the eminent counsel for defendant in error in this case,) who contended as is here contended, that the returns were not ‘false,’ inasmuch as there was no concealment or intentionally false statements, and that the returns showed every item, and the auditor had full knowledge of their character. The information as to ownership was given the auditor on the returns; in the present case like information was given by the taxpayer verbally. The court held that the returns were not false within the meaning of the statute, and confined the judgment to the amount due as taxes for the current year, without penalty. ”

Following out the same line of decisions, is the case of Probasco v. Raine, Auditor, 50 Ohio St., 378. The third proposition of the syllabus is:

“As to what constitutes a ‘false return’ under section 2781, Revised Statutes, Ratterman v. Ingalls, 48 Ohio St., 468, is followed and approved.”

Burket, Judge, in delivering the opinion of the Court, says, page 394:

“From the agreed statement of facts, it appears that these stocks were registered, and therefore could not be concealed; that such stocks had never been taxed by state authority, and that there was good reason for the belief that the stocks were not taxable; and therefore the court is unanimous in the opinion that the returns for taxation for the years 1881 to 1886, both inclusive, were not false returns, within (he meaning of Jhat term, as defined by this court in Ratterman v. Ingalls, 48 Ohio St., 468.”

And in the 38 Ohio SC,560, Insurance Co. v. Capj.el!ar, the syllabus is:

“A fire insurance company made return of its property for taxation to the auditor of the proper county upon a printed blank form furnished to it by the auditor for that purpose, as required by law, in which all its property subject to taxation and the value thereof was truly stated. Among other items so returned were ‘all legal claims and demands for money or other valuable thing, or for labor or service due or to become due to it, and the value thereof.’ There was also stated in said return, in conformity to the requirements of the.form so furnished, a list of debts owing by said company, including an item for ‘re-insurance,’ the amount of which item was fifty per centum of all premiums received on policies not then expired. The amount of debt so returned was deducted from the amount of ‘claims and demands;’ and the remainder was placed upon the tax list and duplicate by the auditor who understood the character of the claim, and the amount of credits due the company subject to taxation. Held:
“1. The item returned as ‘re-insurance’ was not ‘a legal, bona tide debt,' within the meaning of section 2730, Revised Statutes.
“2, The amount of said item was erroneously deducted by the auditor from the amount of ‘claims and demands’ due the company, when the credits of the company were placed on the tax list and duplicate of the county for taxation.
“3. The return of the company was not false, within the meaning of sections 2781 and 2782,of the Revised Statutes.
“4. The county auditor, under section 1038 oí the Revised Statutes, may correct an error in the amount of taxes upon the current duplicate, resulting from such erroneous deduction.”

And on page 573, McIlvaine, Judge, says:

‘‘The point is, were these returns or statements false? They were made upon printed blanks furnished by the auditor, and in conformity thereto. The law required the auditor to furnish blanks for that purpose. The value of all property of the company subject to taxation was truly returned. The amount of re-insurance was also returned among the debts of the company, in conformity to the requirement of the blank form. No doubt the auditor at the time the blank was furnished, believed that this item, with full knowledge of its character, was a debt which could properly be deducted from the credits of the company, and the company, when it returned the item, was of the same opinion. But, however that may be, we are of opinion that the returns, as made, under the circumstances shown, were not false, within the meaning of these sections. This point is further elucidated by the decision upon the next question made in this case, as we do not think that the remedy provided by sections 2781 and 2782 was intended to apply in cases where section 1038 is applicable.”

By what rule should the stocks or judgment have been valued for taxation ? In Exchange Bank v. Hine, 3 Ohio St.,1, one paragrah of the syllabus is:

“Choses in action are to be listed at their true value. If a note, for instance, is wholly worthless, it is not to be listed at all; if it is of some value, but less than its face, it is to be listed at what is it worth. ”

At page 25, Bartley, C. J., says:

“In estimating the taxable valuation of credits, they are not to be taken at their nominal amount, but like the valuation of other property, every circumstance affecting, in any manner, their value, should, be taken into consideration. If the debtor be wholly insolvent, the credit is of no value, and, therefore, has no basis for taxation. If the debtor be in doubtful or failing circumstances, if the claim be disputed, contested, or involved in litigation,or if any defense by way of payment, cr otherwise, either in whole or in part, against the claim, be known to exist, it should be considered, and proper allowances made, in estimating its taxable valuation. The actual value in money of credits thus ascertained, constitutes as proper a basis for taxation, as that of any other kind of property.”

In Cameron v. Cappeller, 41 Ohio St., 533 the syllabus is:

“A statement for the taxation of personal property, moneys, credits, investments in bonds, stocks, joint stock companies or otherwise, which omits a judgment, in reference to which proceedings in error are pending in the Supreme Court, may be corrected by the county auditor under the power conferred by sections 2781 and 2782 Revised Statutes. In putting such judgment on the tax duplicate, the auditor should place it there at its true value at the time the owner should have listed it, and not at its nominal value.”

Nash, J. in the opinion, says:

. ‘‘Such judgment should be listed at its true value at the time of listing.
‘‘The district court, in the case now before us, proceeded to render the judgment which the court of common pleas, in its opinion, should have given, and in doing this valued the interest of Cameron in the judgment at its nominal value in 1876, 1877 and 1878, only deducting therefrom the amount of his attorney’s fee In these years there was a proceeding in error pending and undecided in the Supreme Court to reverse the judgment. By it important novel and difficult questions of law were raised, and it was uncertain whether the judgment would be affirmed. This situation certainly lessened the value of the judgment during its pendency. In fact, the petition averred that these things wholly destroyed the value of Cameron’s interest in the judgment, and when the district court acted, the averments of the petition had not been denied.
‘‘Therefore we think that there was error in the judgment of that court, for which a judgment of reversal is entered herein.”

But, let us look at the value of this judgment, or the value of these stocks as they are shown by the evidence.

It appears from the record in this case that the original proceeding was commenced under section 3388, Revised Statutes, as amended, 87 Ohio Laws, 159, which provides:

‘‘A stockholder who refuses to convert his stock into the stock of the consolidated company, shall be paid at least the actual value of such stock, to be ascertained not alone by its market value'previous to the making of sueh agreement for consolidation by the directors, but from a consideration of the earning capacity of the road in which stock is held, without reference to such proposed consolidation, condition of said road, betterments, cars and other property, iis existing connections, and any other facts tending to increase or diminish the value of the stock, such payment to be made before the consolidation takes effect.”

The section further provides in case of disagreement as to value, for arbitration and an appeal to the common pleas court.

Persons who were members of the annual city board of equalization in the years 1891, 1892 and 1893, called as witnesses, testify that Sherard was before the board during ■ their session in each of said years, and asked them to fix the value of the stock, or judgment, for the reason that he was unable to do so on account of the uncertainty of the result of the litigation then pending. Some of the witnesses • testify that he then stated, in his opinion the stocks should have been valued higher than they were placed by tbe arbitrators or the jury.

It is also testified that Sherard furnished the board with New York newspapers containing printed reports of the stock market in which was quoted the price of stock in the new or consolidated company on the stock boards — the defendant claims, for the purpose of inducing the annual city board to affix to said stock or judgment thereon a less value than they would otherwise have done.

The proceedings of boards of equalization are not conducted upon the strict rules of evidence that are applicable in courts, and will not be set aside on account of the fact that they took evidence that would not have been taken in courts of justice, much less will such proceedings be held invalid for such reason when attacked collaterally.

The record in case of The Pittsburgh, Cincinnati & St. Louis Ry Co. v. Robert Sherard, Jr., is given in evidence, and one of the grounds of error urged was that the proceeding was prosecuted too late, the statute providing “such payment to be'made before the consolidation takes effect.” If that assignment of error had been sustained, Sherard" would, instead of the amount awarded by the judgment,' been entitled to receive stock in the consolidated company, and in that view of the case the value of such stock was material.

In Probasco v. Raine,supra, the court-lay stress upon the fact that: ‘‘From the'agreed statement of facts-it appears that the stocks were registered, and therefore could not be concealed.” In the case at bar, in each of the years the annual city board affixed the value, there was a public record open to che inspection of the board- (or of any citizen), at the courthouse in' the city in which it held its sessions,and as each member was by law authorized to administer oaths, they could have examined Sherard under oath, and góf bis sworn statement of the opinion of the value, and examined other, witnesses. They had a duty to perform, in its nature judicial; that duty'they assumed, and from evidence'then satisfactory to them, they fixed the value at what they believed to be its true value'; and although in the light of subsequent events, the county auditor or tax inquisitor may think the value should have been placed higher, we are of the opinion the annual city board -had jurisdiction, and that on the-facts as shown, their action is conclusive -and final for the years they acted. Would it be contended, if Robert Sherard, Jr., had in bis annual return to the assessor affixed the value at $2Ü pér share, and the annual city board increased it to $25 (the amount they did affix), that the action would not have been conclusive?

If the action of the city board is not conclusive. - what,' in the light of the evidence, would bave’be'en a fair valuation at the time this stock should have been returned fo"1''taxation ? In 1890 Sherard held 2343 shares of the par value'of $50 each; he made a sworn return to the assessor,and stated-the-amount of all moneys invested in -bonds, stocks, joint stock companies or otherwise — $26,450.00, which includes the stocks in controversy. The value at which they were placed in that return is not shown. Prior to 1891 the witnesses fix their value at from $10 to $14 per share, and it is testified that along the line of the road they were offering to sell and could not get $9 per share. Prior to 1891 they were not carried on the stock boards, the only sales being where someone along the line of the road could be found who would purchase. We find that for the year 1890 they were returned at their true value.

In April, 1891, there had been an appraisement of the stocks, and in 1892 and 1893 a judgment and proceeding in error was pending. If the judgment should have been reversed for a reason that would bar the proceeding, he would be entitled to receive stock in the consolidated company; if for some other error occurring in the proceeding, the matter would be re-tried. The testimony fixes the value of stock in the consolidated company during 1892 and 1893 at from $40 to $60 on shares of $100, and, it is testified, sales were made for less. From the testimony and the questions raised in the proceedings in error, we are of opinion that the value affixed by the annual city boards was at the time its full cash value, and probably more than any banker, broker or speculator would have given under the then state of the litigation and the then surrounding circumstances.

The injunction, so far as it relates to the sums placed upon the duplicates as additional taxes for 1890, 1891, 1892 and 1893, is made perpetual.

This leaves only the questions arising upon the return for 1894. At the time the return for taxation should have been made, the judgment had been affirmed by the Supreme Court, and the money paid to Sherard, and a portion of it invested in non-taxable bonds of the United States. Section 2737, Revised Statutes of Ohio, provides:

“Such statement shall truely and distinctly set forth * * Sixteenth: The monthly average amount or value, for the time he held or controlled the same, within the preceding year,of all moneys, credits or other effects, within that time invested in, or converted into bonds or other securities of the United States or of this state, not taxed,, to the extent he may hold or control such bonds or securities on said day, preceding the second Monday of April, and any indebtedness created in the purchase of such bonds or securities shall not be deducted from the credits under the fourteenth item of this section.”

In Shotwell v. Moore, 45 Ohio St., 632, the syllabus is:

“1st. Subdivision 16 of section 2737, of the Revised Statutes of Ohio, which provides that the statement of each person required to list property, shall set forth ‘the monthly aveiage amount or value for the time he held or controlled the same, within the preceding year, of all moneys, credits, or other effects, within the time invested in, or converted into bonds or other securities of the United States,’ is not in conflict with section 3701 of the Revised Statutes of the United States, which provides that, ‘all stocks, bonds, treasury notes, and other obligations of the United States, shall be exempt from taxation by, or under state, municipal or local authority. ’
“2. The method provided in subdivision 16 of section 2737, for estimating the taxable value of property converted during the year into non-taxable securities, is not in conflict with section 2, of .article 12, of the constitution of the state, which requires that laws shall be passed, taxing all property by a uniform rule, according to its true value in money.”

This case of Shotwell v. Moore having gone to the Supreme Court of the United States, is reported in 129 United States 590. The syllabus is:

“A state may make the ownership of property subject to taxation, relate to any day or days or period of the year which it may think proper; and the selection of a particular day on which returns of their property for the purpose of assessment are to be made by taxpayers, does not preclude the making of assessments as of other periods of the year.”
“Section 2737 of the Revised Statutes of Ohio, which requires the taxpayer to return to the assessor, as of the day preceding the second Monday in April in eaoh year, among other things, a statement of the ‘monthly average, amount or value, for the time he held or controlled the same, within the preceding year, of all moneys, credits, ■ or other effects, within that time invested in or converted into, bonds and other securities of the United States or of this state, not taxed, to the extent he may hold or control such bonds or securities on said day preceding the second Monday of April, and any indebtedness created in the purchase of such bonds or securities shall not be deducted from the credits under the fourteenth item of this section,’ does not tax the citizen for the greenbacks or other United States securities which he may have had at any time during the year, but taxes him upon the money, credits or other capital which he has had and used, according to the average monthly amount so held, and is not in conflict with 3701 of the Revised Statutes of the United States, exempting the obligations of the United States from taxation under state, municipal or local authority. ”

And Mr. Justice Miller, in the opinion, says:

“Section 2737 of the Ohio Statutes, which prescribes the character of the statement to be made by persons holding moneys, credits or investments, such as are described, and which are subject to taxation, declares that such statement shall truly and distinctly set forth, among other things, ‘moneys on hand or on deposit subject to order’ and ‘the amount of credits as hereinbefore defined.’ Subdivision 16 requires a statement of ‘the monthly average amount or value from the time he held or controlled the same, within the preceding year, of all moneys, credits, or ¿ther effects within that time invested in, or .converted into bonds or other securities of the United States or of this state, not taxed, to the extent he may hold or control such bonds or securities, on said day preceding the second Monday of April; and any indebtedness created in the purchase of such bonds or securities shall not be deducted from the credits under the fourteenth item of this section.’
“Of the right of the state of Ohio to make this provision we have no doubt. Its purpose is not to enable that state to tax the securities of the United States, and to permit it to tax other investments, moneys on hand and on deposit subject to order, while it combines in the same exemption the securities of the general government and those of the state. We know of no principle which forbids that state from taking the whole period of the business year already passed as the bast means of ascertaining how much the taxpayer shall be required to pay on property which is admitted to be taxable, and how much he shall deduct from the nontaxable securities of the state and of the United States.
“As this was the method under which the plaintiff in error in this case was taxed, and as he was charged with no more than he was liable to pay under a wise.and equitable law, we do not see any error in the judgment of the Supreme Court of Ohio, and it is accordingly affirmed.”

In this case the auditor finds that the cost of the bonds or the amount invested, is $146,482.16, and he has, as he says in his testimony, taken a period of time less than the average. He has taken eleven-twelfths, where he would have been justified in taking .twelve-thirteenths, and he has added 50 per cent, to that, and placed it on the tax duplicate of 1895.

Section 2781, Revised Statutes of Ohio, provides:

“If any person whose duty it is to list property or make a return thereof for taxation, either to the assessor or to* the county auditor, shall in any year or years make a false return or statement, or shall evade making a return or statement, the county auditor shall, for each year, ascertain, as near as practicable, the true amount of personal property, moneys and credits, and investments that such person ought to have returned or listed, for not exceeding the five years next prior to the year in which the inquiries 'and corrections provided for in this and the next section are made,and to the amount so ascertained for each year he shall add fifty per centum, multiply the sum or sums thus increased by said, penalty, by the rate of taxation belonging to said year or years, and accordingly enter the same on the tax lists in his office, giving a certificate therefor to the county treasurer, who shall collect the same as other taxes.”

P. P. Lewis and J. Dunbar, for Plaintiffs.

E. E. Erslcine and John M. Cook, for Defendant.

The deceased failed for the year 1894 to return upon the blank furnished him by the assessor, and omitted to make any return as required by paragraph 16, section 2737, Revised Statutes. Whatever may be the practice as to the making or not making such return, or the opinions of individuals as to the propriety or constitutionality of the statute, it has been settled for us not only by our own Supreme Court, but approved and affirmed by the Supreme Court of the United States.

To so much as is placed on the duplicate as additional tax for 1894, the injunction is dissolved.

(Judge Laubie was present at the hearing, but left during the term, and did not participate in the consideration or decision of the case.)


source: Caselaw Access Project

author: Smith, J. Swing, J.

license: Public Domain

text:
    (First Circuit, Hmilton Co., O., Circuit Court,
    Jan’y Term, 1897.)
    Before Swing, Cox and Smith, JJ.

    THE CITY OF CINCINNATI v. H. H. LINGO et al.
    • Assessment for street improvement — City made party to foreclosure failing to set up assessment, barred.

    A city, after having been made a party in a foreclosure proceeding, and required to file its answer and cross-petition, and having done so, but fails to set up any alley assessment, is barred in a direct action to enjoin the collection of the alley assessment.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

The question in this case briefly stated is this: — 'An action was brought in the court of common pleas of this county for the foreclosure of a mortgage on certain real estate in the city, and to marshal the liens thereon. Before that time, viz: in 1892, the city by an assessing ordinance had levied an assessment upon such property for a street improvement, payable in ten annual installments, and in 1889 had levied another assessment thereon for the improvement of an alley, and which was also payable in ten annual installments, part of which had been paid at the time of the filing of the petition for the foreclosure, viz. Feb, 4th, 1893. After the filing of this petition, the city was made a party defendant, and thereupon came into court and filed answer and cross-petition, set up its claim for the amount due upon the street assessment, viz: $297.95, but said city failed by its answer or cross-petition to set up any claim on •account of the alley assessment. The defendants in error •purchased said real estate at the sale thereof made by the ■sheriff under the decree of the court in said case, which sale was confirmed by the court, and a distribution of the proceeds of sale ordered. The court found that there was due to the city for street assessments, $297.35, and this sum was paid in full to the city. Afterwards, the defendant in •error filed a petition in the court of common pleas, saying that the city by its officers was taking steps to collect the alley assessment, and setting up the facts mentioned, and averring that for said reasons the collection thereof would be illegal,and that the city was estopped from the collection thereof against the property in the hands of the plaintiff, and asking an injunction to prevent said collection, The city filed a general demurrer to this petition, which was overruled by the court, and the defendant not desiring further to plead, a decree was entered, as prayed for. The plaintiff in error in this proceeding claims that in such action the court erred and this is the question for decision.

Under the provisions of sec. 2285, the assessment for the improvement of the alley became a lien on this property from the date of the assessing ordinance, and on the facts set up in the petition in this case, if the city in its answer and cross-petition filed in the original suit, bad set up its claim for the alley assessment also, the court might probably have found it to be a lien on the property (unless contested by the owner on some sufficient ground) and Ordered its payment from the purchase money. ■ It seems clear to us on general principles, that if in an action of that kind, to foreclose a mortgage and marshal and adjudicate as to other liens held by other persons on the same premises, the-holders of such liens are made parties to such proceeding, and are called upon to set up their said liens,- and-they fail or neglect to do so, or by way of answer and cross-petition set up only a part of their claims held-by them at -the time they became parties, and the court adjudicates as to the-rights of such lien-holders, and the property is sold to pay them, and the purchase money distributed according to the order of the court, in such case, if such decree stands in full force, the purchaser of the property takes it free of the claims of all parties to the proceeding, not only of-those asserted and adjudicated, but of those also held by the parties not asserted or adjudicated, and the parties are estopped to setup, as against the purchaser, other claims held-at the time, but not set up by them. This is certainly a fair and equitable doctrine, and almost essential to the protection of purchasers at judicial sales.

I have said that this is the general rule. Does it apply to a case of this kind, where the lien-holder isa municipal corporation and the lien itsellf is for an assessment upon the property ?

The claim of the corporation counsel is, that-it does not. That'in such case the city is not a necessary or" proper party, and if made a party, is not bound to assert its claim, and if it does not do so, or if it does-file an answer and cross-petition, and by mistake or otherwise; fails to set up its whole claim, and the liens are adjudicated as in this case, and the property sold, that the lien omitted to be set up remains upon thé property, and can be asserted at any lime. That in this respect such a lien for an assessment is like that of the state for taxes, and that in cases to sell property or marshal liens, the state or its representatives, is never made a party.

The question is a novel one, and as to which the members of the court are not agreed. So far as our knowledge goes, the point has never been raised in practice. It has always, we think, been the practice in such cases, to make the municipal corporation a party, and for it to set up and assert its lien, and a majority of the court is of the opinion that such is the proper practice, and that it ought to be furthered, or at least, that if the corporation is made a party, and fails to set up its lien or claim, or does it incorrectly, and it is adjudicated, that the same rule should apply to a municipal corporation as to an individual or private corporation. That the same rule does not apply to an assessment made by a municipal corporation as it does to the lien of the state for taxes. The latter is the sovereign power. It is not liable to a suit unless in the cases specifically provided for by the statute. It is not affected by suits or adjudications to which it is not a party. The lien for taxes is the first and best lien, and must be paid, and for the protection of purchasers at judicial sales, Sec. 2854 JRev. Stat. provides that in all judicial sales, .the court, without pleadings, of any kind raising the question, “shall order the taxes and penalties, and the interest thereon against said lands, to be discharged out of the proceeds of such sale.” This renders'it wholly unnecessary for the question to be raised by any pleadings. But we have never understood that this provision applied also to assessments made by municipal corporations. The state, as a sovereign power, in many respects stands on a very different footing from private persons or corporations, or even municipal corporations. For instance, as to the bar of the statute of limitations. The maxim “nullum tempus oecurrit regí” applies to the state, but not to municipal corporations, as held by our Supreme Court, and if a person is permitted by a statute to sue the state, it would be as much bound by the adjudication of the court, as an individual, and we suppose the same principles of estoppel would apply in such case.

Fred Hertenstein and W. H. Whittaker, for city.

J. H. Chas Smith, for Lingo.

A majority of the court then is of the opinion that the petition of the plaintiff stated a good cause of action against the city, the defendant. That such defendant,by reason of the proceedings in and the judgment of the court in the case mentioned, was estopped from the enforcement of this alley assessment as against the land of the plaintiffs below who pucrhased at the judicial sale made under the order of the court in that case, and therefore that the demurrer to the petition was properly overruled, and the judgment will be affirmed.

Swing, J.

I do not agree with the majority of the court as to the questions here determined. It seems to me that the city was not a necessary or proper party, and that the question of its lien was not before the court for any determination. The lien of the city had been fixed by the assessing ordinance, and unless directly set aside by a court in a direct proceeding, could not be relieved by payment. The mistake of any officer, in saying what the amount of the assessment was, cannot bind the city, and there does not arise in this case an estoppel.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court,
    Jan. Term, 1897.)
    Before Smith, Swing and Cox, JJ.
    LEO SCHOTT, TREASURER OF HAMILTON COUNTY, OHIO, v. F. M. and C. A. WASTENEY.

      Taxes — Statute of Limitations does not run against — ■
    The statute of limitations does not run against the state in the matter of the collection of taxes.
    All taxes regularly assessed, whether upon realty or personalty, are a claim on behalf of the state, and a suit for their collection may be maintained after as well as before the expiration of six years.*
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

We are of the opinion that the plaintiff in error was entitled to recover the amounts claimed by him in the two cases above named, being in the one case the amount of chattel taxes charged against the defendants on the tax duplicate of Hamilton county for the year 1884, together with the penalty thereon, and in the other case the amount of chattel taxes charged against them on the tax duplicates for the years 1885, 1886, 1887 and 1888, together with the penalties thereon, notwithstanding the fact that the actions to recover the same were not brought until July 17, 1895, which was more than six years after said causes of action had accrued; and notwithstanding the plea of the statute of limitations had been set up in each case by the defendants —-and therefore the court of common pleas erred in reversing the judgments which had been rendered against the defendants by the justice of the peace before whom the actions were originally brought, the sole ground of the reversal being that, in' the opinion of the court of common pleas, the action was barred by the statute of limitations.

The action was rightly brought by the treasurer under the provisions of sec. 2859, Rev. Stats., which expressly authorizes such suit “in addition to any other remedy provided by law for the collection of such personal taxes.’’ Section 4981, Rev. Stats., provides that an action upon a liability created by statute other than á forfeiture or penalty must be brought within six years form the time it accrued. If therefore this statute applies to a claim like this, and when asserted by an official as was done here, the holding of the court of common pleas was correct.

But we understand it to be a settled principle of the law that statutes of limitation do not run against the state unless there is an express provision • therein that they shall do so. If there be no such express provision of statute, they do not affect the state. The question then for decision is, whether the claim asserted in these cases is one in favor of the state against these defendants. "We are of the opinion that it is. It is certainly true that a part of allthe taxes levied on the general duplicate of a county is for state purposes, and when collected must be paid into the state treasury for state purposes; and the fact that under the provisions of the statutes it is collected by a county treasurer, in no way alters this, or makes the statute of limitations operate as a bar to its recovery if suit is not brought to collect it within the time provided for the bringing of such an action by persons or corporations other than the state. If this be so, the holding of the court of common pleas that no part of the amount sued for could be recovered was erroneous.

But in our judgment the whole claim prosecuted in these cases was a claim in behalf of the state, and the whole of it stands on the same footing. Our statutes we think, clearly recognize this' doctrine. For instance, sec. 2838, Rev. Stats,, provides “that the lien of the state for taxes levied for all purposes in each year, shall attach to all real property subject to such taxes on the day preceding the second Monday of April, annually; and shall continue until such taxes with any penalty thereon shall be paid. All personal property subject to taxation shall be liable to be seized and sold for taxes.” Here the lien of the state is made to attach to all real property to secure the taxes levied thereon for all purposes — not simply for that part thereof levied for state purposes proper. ~ All taxes are in effect levied by the state, through different instrumentalities,and are in reality the property of 'the state when collected and until a settlement is made with the state authorities, and the amount apportioned to the proper beneficiaries; and if the taxes are not voluntarily paid, or the amount thereof realized by a sale of the delinquent lands, such lands are forfeited to the state. We see no reason from any provision of the statute to suppose that the claim of the state to the taxes on personal property until- collected and apportioned stands on any different ground. It is true that the statute authorizes the treasurer of the county to bring this action ; but he brings it for the state, and not for the county, townships, school boards or municipal corporations, who, after the taxes are collected and apportioned, will have a share thereof. If such taxes do until collected belong to the state, the fact that the legislature may have authorized a person or a particular officer to bring the action on its behalf, should not make the claim liable to b$ defeated by a plea of the statute of limitations, any more than if it were, under thejpro visions of a statute, brought in the name of the ‘ state'jjby the Attorney General, or a Prosecuting Attorney.

Wilby & Wald, contra

The final judgments of the court of common pleas in favor of the defendants below and the judgment of said court reversing the judgments of the justice of the peace will be reversed, with costs, and the case remanded to the court of common pleas for execution of this judgment.

Bendigs, Foraker & Dinsnwre, for the County Treasurer.


author: Burrows, J.

text:
    (Seventh Circuit — Jefferson Co., O., Circuit Court,
    Nov. Term, 1896.)
    Before Laubie, Frazier and Burrows, JJ.
    JOHN ROSE v. STATE OF OHIO.

      Criminal law — Evidence.
    1. Proof that the defendant, prior to the commission of the alleged crime of murder, had seduced the deceased, is incompetent, unless it affirmatively appears that such seduction was in someway connected wittCsaid crime as motive therefor or otherwise.

      Irrelevant matters.

    2. That the deceased was a person of tender years and of weak mind at the time of such seduction, were facts wholly irrelevant to any issue in the case.

      Statements of others — Evidence—Acquiescence.
    3. A conversation had with the defendant while in jail awaiting his trial, whereby certain prejudicial statements made by others are communicated to him, cannot be given in evidence against him, in the absence of any admission of or acquiescence in the truth of such statements by him, and in the absence also on his part of any conduct or demeanor indicative-of guilt in connection with such communication or as a result thereof.

      Statement by person incompetent as witness.

    1. Where the only effect of the proof of such conversation is to show that a person not competent to be a witness had in fact made such prejudicial statements, its admission is error.

      Same — Corroborated by third party incompetent.

      5. The fact that the defendant was seen and recognized at a certain time and place, cannot be proved by showing that the party making such recognition shortly thereafter stated to the witness who the person was.

      Improper remarles by trial judge.

    6. Nor is such evidence competent in corroboration of a witness testifying to having made such recognition

      Reasonable doubt.

    7. Where the trial judge, in the hearing of the jury,'imputes improper motives to the defendant’s witnesses and disparages their testimony upon a material matter, it will be presumed, in the absence of any showing to the contrary, that the defendant was thereby prejudiced and deprived of a fair and impartial trial.

      Erroneous instruction.

    8. A charge to the jury in a criminal case which directly or inferentially assumes that doubts as to the guilt of the defendant are prima facie unreasonable, and by which the jurors are cautioned and directed not to respect such doubts until an ineffectual effort has been made by them to divest their minds of- the same, is erroneous.

      Error to the Gourt of Gommon Pleas of Jefferson county.
   Burrows, J.

John Bose was indicted for the killing of Clara Seigler on the 30th day of May, 1895. The indictment charges the defendant with murder in the first degree.

The case was tried to a jury, and resulted in a verdict of guilty. A motion for a new trial was overruled, and a bill of exceptions taken containing all the evidence. The record is voluminous, and we have given to the case such attention as its importance seemed to deserve.

1. On the trial of this case evidence was admitted as to the early history of the deceased and the accused. Testimony is given that the defendant came into the neighborhood where the decease'd was living in 1888 or 1889; that he was seen in her company frequently; that she was seduced by the accused; that a prosecution for bastardy was instituted and withdrawn; and that the deceased, at that time, was a person of weak mind, and only fourteen or fifteen years of age.

Quite a large portion of this record is devoted to evidence of that character.

This evidence was admitted against the objection and exception of the defendant below. The question is now presented whether this evidence was competent.

It will be understood by all who participated in the trial, that the State had a clear and definite theory in respect to this homicide. The theory was and is, as shown by the record, that John Bose became jealous of the deceased on account of the attentions shown her by Vernon Oaloway and another party called “Little Sammy,” or Richard Cooper; that he was not only jealous, but furious about it; that he talked and gabbled about it to everybody, men and women, and had been doing so for two- weeks before the homicide; that during that time, while laboring under these emotions of jealousy and revenge, he threatened to kill the whole of them time and again; and that this homicide was the offspring of such jealousy,

Of course, relations between the accused and the deceased might properly be put in evidence so far as they illustrated or tended to illustrate the feelings existing between these two persons at and just prior to the time of the alleged homicide; and any such relations might be put in evidence for the purpose of showing a motive for the criminal act; but they could not properly be admitted to prove that the accused was a person of bad character, or had committed other offenses.

The rule, we think, is stated in volume 1, Greenieaf’s Evidence, at section 51:

“Sec. 51. It is an established rule, which we state as the first rule, governing in the production of evidence, that the evidence offered must correspond with the allegations, and be confined to the point in issue.’’
“Sec. 51a. It is not necessary, however, that the evidence should bear dircetly upon the issue. It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof; although, alone, it might not justify a verdict in accordance with it.’’

At section 53 we have the exception:

“Section 53. In some cases, however, evidence has been received of facts which happened before the principal transaction, and which had no direct or apparent connection with it; and therefore their admission might seem, at first view, to constitute an exception to this rule. But those will be found to have been the cases in which the knowledge or intent of the party was a material fact, on which the evidence, apparently collateral, and foreign to the main subject, had a direct bearing, and was therefore admitted.’

It is obvious that the evidence must be confined to the facts surrounding the parties at the time of the killing, and the facts anterior thereto, that throw some light upon the transaction itself.

Necessarily, there are three questions that are important; the criminal act, the preparation for its commission, and the motive for it.

It was competent to show anything that tended to demonstrate that the accused had a motive, some reasonable ground or unreasonable ground,for desiring to deprive the deceased of her life.

The reasons given by Prof. Greenleaf why the evidence should be confined to the point in issue are, that evidence outside of the real issue in the case, must tend to prejudice the accused upon his trial, and to mislead the jury; and that the accused cannot be presumed to be prepared to enter upon an investigation that is not involved in the issue.

For what purpose was the evidence of seduction competent? Certainly it did not bear in any respect upon the act of killing, or the preparation for the commission of the offense. Did it tend to show any motive for it?

It is apparent from this record that the only motive the accused had or could have had -for the killing the deceased was jealousy; and, indeed, this was the theory advanced by the State,and clearly supported by its evidence. His declarations in respect to their previous relations furnished reasons, rather, why he should not and would not have desired to take her life. The only legitimate inference to be drawn from his declarations, or from the facts detailed, of his having seduced her in 1889, was that the accused was a man of depraved and worthless character, and had demonstrated it by conduct which might b.e properly characterized as infamous.

Now, when we turn to the argument in the case, made by the Prosecuting Attorney,which was proper if this evidence was proper, we find that the great burden of his argument is not in reference to the motive for and fact of the killing, but the conduct of the accused in 1889, this cruel, abominable conduct towards this weak-minded girl, when she was fourteen or fifteen years of age.

We are of the opinion that the court erred in the admission of this evidence, and that the error so committed was prejudicial to the accused.

. 2. While the accused was in jail, two reporters, residing in this city, visited him and had conversations with him. Some of it related to this matter upon which I have just commented. During the conversations it was said to him, as appears from, this record,'“Your little boy says that you killed his mamma, and then ran out of the back door; and the old lady says that on that night she saw you go out the back door.” The record discloses the fact, that prior to this he bad denied having any knowledge of or participation in this homicide. The further reply obtained from him was “the little boy will answer whatever is told him,” according to the recollection of one of the witnesses, and according to that of the other, “the little boy will say whatever he is told; if you go and see him he will tell you differently.”

Such a statement as that,made to a prisoner,and a denial of its truth by him, might not ordinarily have any prejudicial effect; but in this case its prejudicial influence cannot be doubted. The Prosecuting Attorney, in his opening statement, refers to it. The boy is brought into court and put upon the stand to testify, and then taken by the judge to another room for a preliminary examination as to his competency. It was demonstrated in the presence of the jury that the child, if permitted to testify, was expected to give important testimony.

In the closing argument it is again pressed upon the jury that the boy had made these statements; that they had been communicated to the accused, and that he had simply made a denial.

It is not claimed that there was a direct admission or a confession, but an indirect admission on the part of the defendant; that when this statement was made to him, his denial was of such ambiguous character as to afford some presumption of guilt.

I again refer to Greenleaf, vol, 1, sec. 197: “Admission may also be implied from the acquiescence of the party. But acquiescence, to have the effect of an admission, must exhibit some act of the mind, and amount to the voluntary demeanor or conduct of the party.”

The first question always is, whether the prisoner was reasonably called upon to make any reply.

We are cited by counsel to section 199 of this same volume, which I read:

“See. 199. But in regard to admissions inferred from acquiescence in the verbal statements of others, the maxim, Qui facet consentiré videtur, is to be applied with careful discrimination.” “Nothing,” it. is said, “can be more dangerous than this kind of evidence. It should always be recei.ed with caution; and never ought to be received at all, unless the evidence is of direct declarations of that kind, which naturally call for contradiction; some assertion made to the party with respect to bis right, which, by his silence, he acquiesces in. ”

In this case, however, there was not only a denial of the statement, but reasons given w-hy no reliance could be placed upon it. He said the old lady was insane, and that was true. He said the little boy would say anything he. was told to say; and looking at the examination that was had before the judge in order to determine his competency, it is apparent that this statement was correct. There was not acquiescence by silence, .and there were no false reasons given by way of explanation or excuse.

Counsel for the State call our attention to the case of Murphy v. The State, 36 Ohio St., 628.

In that case one of the confederates was making a direct admission involving both, of them, and Murphy, by his silence, acquiesced in the statement made on behalf of both and for their joint benefit. .

The learned judge who delivered the opinion in the Murphy case, says, at page 630:

“We are all of the opinion that the declarations of Morrow were properly admitted as evidence on the trial of Murphy. I would have preferred that their admissibility should have been placed on the peculiar circumstances of the case, to which reference has been made, as I doubt whether, as a general rule, one who is under arrest can legally be regarded as called upon to reply to the statements of another touching his guilt. ”

The important effect of this evidence was its tendency to prove that the boy, too young to be a witness, had in fact made the declaration that he saw the accused kill the deceased.

It was error, in our opinion, for the State to introduce these alleged declarations of the boy and the mother of the deceased against the objection of the accused.

3. The whereabouts of the prisoner was shown on the night of the homicide by different witnesses up until a quarter of 12 o’clock, or half past 11:00. From that time he is not seen again until morning, unless he was seen by Margaret Maloy.

As I understand the evidence, shortly after twelve o’clock she was wakened up by her little girl, who was ill and wanted some water. She got up for the purpose of going out to the hydrant on the street. As she went to the yard fence, she saw some one coming, when she retreated into the house. At that time she did not recognize the person who was coming. She nearly closed the door keeping her foot against it. She says she then recognized the person passing by as being John Rose, the prisoner. After he had passed she went out and obtained the water; and shortly after her return to the room, she told her daughter who the man was whom she had seen.

Her daughter, Annie Maloy, a girl 13 years of age, is called to the stand,’ She was permitted to testify that her mother, after she came back into the house, told her who the man was.

It was important for the St^ie to show, if it could, that, at the time Margaret Maloy went to the door, this prisoner was seen coming from the direction of the place of the homicide, and going towards his stable.

Did she, on that night, recognize John Rose? She says that she did, and that she told her daughter that night who it was. And to corroborate such statement the daughter is permitted to testify that her mother told her that night who it was.

As suggested by my brother, Laubie, it comes simply to this; that the State was putting in, by the mouth of another, the declaration of Mrs. Maloy, not under oath,to support the statement under oath.

This evidence, in our opinion, was incompetent, and its admission error.

4. We Lave looked at the requests of defendant below refused by the court, and we think requests numbered ten and eleven, giving the rule to be applied to witnesses who have been impeached, should have been given, in language or substance.

The requests were proper, in view of the evidence, and were substantially in the language approved by the Supreme Court in Mead v. McGraw, 19 Ohio St., 55.

5. Counsel for the accused asked the court to charge as proposition nine:

“A verdict of guilty can never be returned without convincing evidence. The law is too humane to demand a conviction while a rational doubt remains in the minds of the jury. You are justified and required to consider a reasonable doubt assisting, if the material facts without which guilt cannot be established, may be fairly reconciled with innocence. You will look, then, to all the evidence, and if that. satisfies yoa of the defendant’s guilt, you must say so. If you find you are not fully satisfied, but only find that there are strong probabilities of guilt, your only safe course is to acquit. ’’

This was read to the court in the hearing of the jury, and refused.

The court charged the jury upon the question of reasonable doubt, and the amount of evidence necessary to warrant • a conviction, as follows:

“The accused cannot be lawfully convicted unless the ■evidence establishes his guilt beyond a reasonable doubt.
“It is not to the benefit of a doubt, or of any doubt, to which the accused is entitled under the law; he is entitled only to the benefit of a reasonable doubt.
“A reasonable doubt is such serious doubt, as, after a careful examination and full consideration of all the evidence, with a view to arrive at the truth, still remains in the mind of a juror, and because of which he cannot say that he is convinced to a moral certainty of the truth of the charge. The law does not contemplate that a captious or artificial doubt shall be sought and entertained, that the same may serve as a pretext for evading a painful duty.
“It should be borne in mind that in human affairs, absolute certainty cannot always be arrived at. All that the law requires, is that degree of moral certainty which will ■enable jurors to say that the facts satisfactorily established by the testimony are consistent with the guilt of accused, and inconsistent with any other reasonable hypothesis.
“The doubt thus to be respected is one of which the mind ■cannot divest itself, notwithstanding honest effort in that behalf.’’

We think that the charge of the court, taken in connection with the refusal to charge, was misleading. It obscured the important consideration, that the facts proved must be of such convincing and conclusive character as to clearly and fully establish the guilt of the accused.

Counsel for the prisoner asked the court to charge that “a verdict of guilty can never be returned without convincing evidence;” and “if you are not fully satisfied, but find only that there are strong probabilities of guilt, your only safe course is to acquit.” The court charged the jury that absolute certainty cannot always be arrived at, and that the law only requires that degree of moral certainty which will -enable the jurors to say that the facts satisfactorily established by the testimony are inconsistent with any other reasonable hypothesis.

If there are degrees in moral certainty, the law demands ■the highest degree to support a verdict of guilty. In a criminal case, “that degree of moral certainty which will •enable jurors to say” that the facts proved are consistent with guilt, does not come up to the demands of the law.

The facts proved must be so indicative of guilt, and of such materiality and conclusiveness as to overcome the legal presumption of innocence, and compel the jurors, in a conscientious discharge of their duy, to say, that such facts are “incompatible with the innocence of the accused, and incapable •of explanation upon any other reasonable hypothesis than of his guilt.”

It might be suggested, however, that the character of the proof requisite to warrant a verdict of guilty was fully stated when the court charged the jury that, “The accused cannot be lawfully convicted unless the evidence establishes his guilt beyond a reasonable doubt.”

The force and effect of this rule of law was weakened by the subsequent explanations made by the court as to the meaning of the phrase “reasonable doubt. ” The jury was told that the accused was not entitled to the benefit of “a ■doubt” or “any doubt,” or a “captious or artificial doubt,” but only a “reasonable doubt,” a “serious doubt” remaining in the mind of a juror after full and careful consideration of the evidence. ”

And again: “The doubt thus to be respected, is one of which the mind cannot divest itself, notwithstanding honest, •effort in that behalf. ”

While all these explanations of ‘ ‘ reasonable doubt, ’ ’ which tend to confuse and darken the understanding of the jury, can doubtless be found in treatises and decisions, the propriety of explaining a phrase that conveys a definite and precise meaning to the mind of a juror, by the use of words which he can neither define nor understand, is not apparent. It may be safely assumed that the average juror has only a vague conception of the meaning of an artificial or captious doubt, while he perfectly understands that a reasonable doubt is any doubt entertained by an intelligent man conscientiously endeavoring to ascertain the truth.

There is and can be no fixed arbitrary standard of reasonableness in such case. Each juror must rely upon the integrity of his own reasoning faculties; and if, in the honest use of the same, doubts arise in his mind as to the sufficiency of the proof, why should he be called upon, by the charge of the court, to disparage, discredit and reject such doubts, or make an effort “to divest his mind” of them?

We think this ninth request was good law, and ought to have been given, especially in view of the explanations given by the court as to the meaning of the phrase “reasonable doubt.”

The prejudicial effect of the charge arises from the fact that it assumes that any and all doubts, entertained by the jury as to the guilt of the defendant, are, prima facie, unreasonable; and directs the jury not to respect or act upon such doubts until they have made an ineffectual effort to divest their minds of them,

6. Complaint is made that the judge made remarks upon the trial prejudicial to the rights of the accused. Henry Freeman was an important witness for the State. Witnesses were called on behalf of the accused to impeach his reputation for truth. The attempt was made to show that Freeman 'had been known by the name of “thief.”

The impeaching witnesses were from an adjoining county. Counsel for the State were insisting upon their objections to certain questions, when the court, with apparent impatience, makes this remark:

“These witness have come here for a purpose, and they are going to swear to it. What is the use of fooling about it. It don’t amount to anything.”

We all know that the jury are apt to attach great importance to an intimation of opinion made by the judge; and especially is this so when t&e judge is a man of high character and standing, as in this case.

The effect of this remark was simply to “whistle down the wind” this whole attempt to impeach Freeman.

This unfortunate expression tended, in our opinion, to prejudice the accused, and deprive him of a fair and impartial trial.

7. There is another ground of error, that the verdict is against the evidence. We have not fully considered it, and express no further opinion upon it; but for the reasons already given, the judgment is reversed, and the cause remanded to the court of common pleas for further proceedings.

8. Mr. Erskine- — -“I desire your Honor to pass upon the question of the vial.”

Court — I intended to comment upon that. Henry Freeman testified that some days prior to the homicide he had a conversation with the accused upon the subject of obtaining poison to kill rats; and that the accused said, in this connection, that his rats would not eat “Rough on Rats, ” on bread and butter. After the homicide the same witness found a small vial in the stable near the spot where the accused slept, which was delivered to a physician. The physicial was called as a witness for the State, and testified that he administered some of the contents of the vial to a cat, and the cat died. He also testified that he had no other knowledge, by analysis or otherwise, as to whether such contents were poisonous. He was then permitted to give his opinion upon the question, and stated, in substance, that in his opinion the vial contained poison. We are of opinion that the objection to this evidence was well taken, and should have been sustained.

John M. Cook and John W. Trainer, for Plaintiff in Error.

.Emmett E. Erskine, Pros, Att’y, and Dio Rogers, for Defendant in Error.

This witness observed no pathological symptoms indicating that the cat died of poison. The death may or may not have been caused by the dose, and the witness himself said that he was unable to give an opinion upon the question.

' Thereafter the vial and its contents were given in evidence against the objection and exception of defendant.

We think this was error. As a general rule, the facts from which incriminating inferences are sought to be drawn, should be fully proved; otherwise, such inferences may be made to rest on mere conjecture and speculation.

That the vial contained poison was unproved. That the defendant ever had it in his possession was unproved. If both these facts had been proved, then, the further and only important fact, that the accused intended to use it for a homicidal purpose, and for the specific purpose of poisoning Clara Seigler, was not only wholly unproved, but was not inferable from the evidence.


author: King, J.

text:
    (Sixth. Circuit — Lucas County, Ohio, Circuit Court
    Jan. Term, 1897.)
    Before Haynes, Scribner and King, JJ.
    ANNA M. HEAD v. ADAM M. CHESBROUGH.

      Riparian Rights.

    1. Conveyance of platted lots which are situated npon the bank of a navigalba stream, no part of the bed of the stream being platted, includes all the riparian rights of the grantor in front of said' lots to the center of the stream, although such stream is not mentioned in the conveyance. To exclude such rights they should be • reserved or excepted in the deed.
    (Affirms decision of Common Pleas by Pugsley, J., in same case, 4 Nisi Prius Rep. 73).
    Appeal from the Court of Common Pleas of Lucas county.
   King, J.

This cause was brought in the common pleas by the plaintiff, to quiet title to certain premises which she avers the-defendant is claiming; it was tried in the common pleas and. appealed to this court.

The premises in controversy, as alleged in the petition, is a certain tract cf land which she avers lies between lots-eleven and twelve of the subdivision of lots twelve, thirteen, fourteen and fifteen of Ironville, constituting the village of ' Ironville — lying between those subdivided lots and the center of the channel of the Maumee river, and the claim is - based upon a survey and plat of the village of Ironville, made by David Weaver, in 1870, Weaver being, then, the owner of the original lots Nos, 12, 13, 14 and 15 in theWa-sa-on Renau & Cheno tract, in Manhattan. That map ■ purports to divide parts of these lots which I have named into small lots; and among the small lots are lots numbers-eleven and twelve. The lots appear' on the Weaver map to-come substantially to the .water's edge, as it stood in 1870, or as the map illustrates it; but, drawn along the shore of the water, and near it, was a line which, it is claimed by the • plaintiff, marked out the boundary of lots on that side, or end, and it is claimed that the map shows that although those lines are.angling lines, running a short distance in one direction and then changing direction and running-again (a short distance on a straight line, and then again changing direction; that each of the angles was marked by posts,and that the line itself on the map was shown to have ■ certain angles, which are given; and if that be so, it appears-in the original map, which is before us, then those courses are somewhat oblique. The record, and this map — for it was shortly after its execution recorded' — show some courses on that line, but they do not show that there were boundary stakes set at those angles. Whether that line was intended to be a boundary of these lots, or not, without deciding whether it was the original intention of Mr. Weaver to make that the boundary, it appears plainly, from the map, that that angling line is coincident with the water as it then appeared, or as his surveyor represented it upon this map; and, we think, it appears from this map alone to have been intended simply as a survey of that end of the lot, placing the line as near the water’s edge as it was convenient for the surveyor to go. But the determination of that question is not, in our judgment, essential to the determination of the rights of the parties. Mr. Weaver had claims against him, and gave mortgages upon some portions of his land, and conveyed other portions of it, and some of it was sold at sheriff’s sale, and these lots, eleven and twelve, which are owned by the defendant, Chesbrough, became, by a conveyance to the plaintiff, the property of the plaintiff; they had, in fact, become her property before 1885; but in 1885, the plaintiff being then the owner of lots eleven and twelve, conveyed them to A. Bridge, and plaintiff now claims that she is the owner of the land, and the sole owner of the water in the river between those lots and the channel. Being the owner of lots eleven and twelve, she conveyed them to one A. Bridge, by deed which describes them a& lots eleven and twelve on this plat. In 1895, Bridge conveyed these lots, by the same description, to the defendant, but with also an additional description, by which he undertook to convey all the riparian rights and water-privileges that might exist upon them or be annexed to them. There is no dispute upon the testimony here that the water had then either arisen or had washed away the soil, so that it covered a large portion of lots eleven and twelve, as originally shown upon the Weaver map — especially lot twelve, which, perhaps, was at least one-third of it under water- — -and a good portion of lot eleven was also under water at the time when she conveyed to Mr. Bridge, and this condition of things existed at the time when Bridge conveyed to the defendant; so that when the defendant purchased, as well as when Bridge purchased of the plaintiff, these lots run to the water — and the water covered a part of the premises.

It is also in evidence that when Mr. Bridge purchased these lots, and the plaintiff purchased of Bridge these lots, because of their water privileges, he paid a very much larger price — several times as large a price — as the line described within the boundaries of these lots would have been worth at any time.

We think the law is well settled that when one party conveys land adjoining a navigable river of the state of Ohio, and the land in fact bounds and abuts upon the water which flows in front of the premises, and conveys by a conveyance which does not except or reserve the land in front of the premises, although they may be marked with boundary lines; that the grantee takes to the center of the navigable stream — to the center of the current; and it is useless and the time of the court will not allow us to cite authorities upon that question.

The only case we need refer to is a recent one of the Supreme Court, in 53 Ohio St., and I will only read a few lines in that decision. The court, after describing the grant — which was a boundary line fixed by the deed, and which boundary line was in the water — say, on page 266:

“These considerations would seem to justify the presumption that a grant of this character is to the central thread of the stream unless terms are employed to limit it.

King & Tracy, for Plaintiff,

Glayton W. Everett, for defendant.

“And such appears to be the settled view of the courts of the country. (Citing many other cases.)
“To the application of this doctrine, it is quite immaterial whether the stream be named as a boundary of the lands granted, or there be a description by courses and distances from a fixed monument, whereby a line is established coincident with the stream. The doctrine regards the substance of the grant, and not its form.”

That, we think, is sufficient law to cite upon this question, and that the substance of this grant, made by the plaintiff herself, in 1885, conveyed this land and all its rights and privileges to the water and soil in front of these lots, though it may have been described by actual boundaries — to the center of the stream in front of the premises.

Therefore the order and judgment will be that the petition in this case be dismissed, and the defendant will recover his costs of the plaintiff.


text:
    (First. Circuit — Hamilton Co., O., Circuit Court
    Jan’y Term, 1897.
    Before Smith, Swing and Cox, JJ.
    JOHN A. LLOYD v. THE NELSON BUSINESS COLLEGE.
    The fact that the act of a servant resulting in an injury may have been malicious, and one for which he is liable to criminal prosecution, does not prevent the master from being liable for damages for such act.*
    Error to the Court of Common Pleas of Hamilton county.
    The plaintiff in error, while standing upon a step-ladder, repairing the chandeliers in the defendant’s school room, was violently thrown to the floor and injured by the pushing of the ladder from under him by the janitor, cleaning the room. The present suit ■ is for damages on account of the wrongful act of the janitor. At the trial below an instructed verdict was returned for the defendant, on the ground that the act of the janitor was malicious, and not within the scope of his employment,

      Wm. E. Bundy, and Wm. M. Eames, for Plaintiff in Error.

      W. C. Cochran, contra.
   Smith, J.

We are of the opinion that the court of common pleas erred in instructing the jury at the close of the evidence offered by the plaintiff below to return a verdict for the defendant.

The evidence so offered tended strongly to show that the injury to the plaintiff resulted from the wrongful conduct of the agent of the defendant company, “when acting within the scope of his employment and in the execution of the service for which he was engaged by the master;” and the case should have been submitted to the jury. The fact that the servant may have acted maliciously, and thus made himself liable to a criminal prosecution, does not prevent the master from being liable for damages for such act. 36 Bull., 327.

The verdict was against the evidence, and a new trial should have been granted. The judgment will, therefore, be reversed, with costs, and á new trial awarded.