text:
    IMPLIED ELECTION BY HUSBAND NOT TO TAKE UNDER HIS WIFE’S WILL.
    Court of Appeals for Hamilton County.
    Isaac Bates, Administrator, v. Jerome D. Creed, Administrator, et al; and Five Other Cases.
    Decided, July 10, 1913.

      Wills — Commissions Papadle to Executors and Administrators — Husband’s Course of Conduct Held to Imply Election Hot to Tafee Under Will of His Deceased Wife.

      1. The commissions fixed by statute for executors and administrators is in contemplation of law in full payment for all ordinary services rendered; and where it becomes necessary that an administrator de bonis non should be appointed to complete the settlement of the estate, the commissions should be equitably apportioned between the original and succeeding representative of the estate in proportion to the value of the services rendered by them respectively.
    2. From facts set forth in the opinion, the court concludes that W. A. McC. did not in fact elect to take under the will of his deceased wife, but must be deemed to have elected not to take uhder said will.

      William Worthington, Willis M. Kemper and Robert S. Fulton, for Trustees for Colored Industrial School and for Jerome D. Creed, administrator.

      KeOjly, Ferris & McAvoy, for Isaac Bates, administrator.

      W. C. Cochran, for National Woman’s Suffrage Association.
    Jones, O. B.; J.; Swing, J., and Jones, E. H., J., concur.
   These six cases were heard together, as they all related to matters concerning the settlement of the estate of Sallie J. McCall, who died testate March 6, 1909. On March 25, 1909, her husband, William A. McCall, was appointed and qualified as her executor. In September, 1909, William A. McCall remarried, his second wife being Mary A. McCall, and upon September 9, 1909, he died intestate and childless. On September 16, 1909, Isaac Bates was appointed administrator of the estate of William A. McCall. On October 15, 1909, Jerome D. Creed was appointed administrator of the estate of Sallie J. McCall with her will annexed. On February 21, 1910, Isaac Bates, as administrator of William A. McCall, filed an account of the latter as executor of the will of Sallie J. McCall. On March 12, 1910, exceptions to this account were filed by Creed as administrator, and by Frank J. Jones and others, legatees under the will.

On March 29, 1910, before these exceptions had been disposed of, Isaac Bates, as administrator of William A. McCall, filed his petition in Hamilton Common Pleas Court, No. 145181, against Creed, as administrator with the will annexed, and the beneficiaries under the will of Sallie J. McCall, alleging that William A. McCall during his lifetime had made no election of record to take under the will of Sallie J. McCall; that the debts of the estate had been paid by McCall during his lifetime and that it was ready for distribution which he, Bates, as administrator of the deceased executor, was willing and ready to make, and thereupon he asked the advice of the court as to how this distribution should be made.

On June 29, 1910, the probate court disposed of the exceptions to the account filed by Bates, as administrator of William A. McCall, the deceased executor, and settled that account. Bates took exceptions to this settlement and gave notice of appeal. Afterwards he perfected this appeal and that cause came into the court of common pleas as No. 146011. At the same time he filed a petition in error which was docketed in the court of common pleas as No. 146010. On December 30, 1912, .judgment was entered in the appeal cause modifying the order of the probate court; on a motion for a new trial this judgmentt was modified on March 3, 1913. To the judgment as thus modified a petition in error has been filed by Creed as administrator, which is cause No. 49 on the docket of the court of appeals.

Cause No. 145181, being that brought by Bates ashing for instructions, resulted in a judgment rendered by the court on March 4, 1911, instructing him that his only duty in the premises was to turn over the assets of the estate of Sallie J. McCall to Jerome D. Creed, the administrator of that estate, and that he, Bates, as the administrator of the deceased executor, had nothing to do with the distribution of the estate of Sallie J. McCall. To this judgment Bates as administrator prosecuted both error and appeal; the appeal case being docketed as No. 5368, and the error case as No. 5388, in the circuit court. Mary A. McCall, the widow of William A. McCall, also prosecuted an appeal in this case and her appeal is docketed as No. 5369 in the circuit court.

On June 3, 1911, Jerome D. Creed, as- administrator of the estate of Sallie J. McCall with-her will annexed, filed his petition in the court of common pleas, docketed there as case No. 148025, alleging that Mary A. McCall, the widow of William A. McCall, claimed that he had not elected to take under the will of Sallie J. McCall prior to his decease and therefore that she as the sole distributee of William A. McCall was entitled to one-third of the estate of Sallie J. McCall, his first wife, which claim was disputed by the legatees under the will; and that other questions had arisen upon which he needed the advice of the court, and thereupon he prayed the court to instruct him as to his duties. The Colored Industrial School, the principal legatee under the will of Sallie J. McCall, filed a cross-bill in this cause alleging that William A. McCall had as a matter of fact elected to take the provision made for him by the will of his first wife, Sallie J. McCall; and this claim was disputed by answer of both Isaac Bates, as administrator of William A. McCall, and Mary A. McCall, his widow.

Judgment was rendered in it on December 16, 1912, declaring that William A. McCall had not elected to take under the will and giving instructions as to distribution. From this judgment Creed, as administrator, prosecuted an appeal, docketed as No. 5788 in the circuit court; and the Colored Industrial School also prosecuted an appeal, docketed as No. 5795 in that court.

The first question that presents itself is, the duty of Isaac Bates as administrator of William A. McCall, deceased, executor of Sallie J. McCall, with reference to her estate. Upon the death of an executor or an administrator it becomes the duty, by virtue of Section 10631, General Code, of the probate court to grant letters of administration with will annexed to some suitable person to administer the goods and estate of the deceased not administered, and by virtue of Section 10634 this administrator becomes at once entitled to the possession of the personal effects and assets of the estate unadministered, and it becomes his duty, under Section 10638, to file an inventory of such estate unless in the opinion of the probate court it should not be necessary, and he then proceeds to complete the administration of such estate in accordance with law.

In the estate of Sallie J. McCall, Jerome D. Creed has been appointed such administrator de bonis non with will annexed, and upon his qualification he thereupon became charged with the duty to take possession of the assets of that estate then unadministered and to proceed with the final administration of the estate.

Under Section 10822, General Code,. it became the duty of Isaac Bates, as the administrator of William A. McCall, to render a final account of said McCall’s administration as the executor of Sallie J. McCall, deceased, within six months after his appointment, and it was his duty to turn over to Creed as administrator de bonis non all assets coming into his hands belonging to the estate of Sallie J. McCall subject only to the payment of proper commissions and fees to which decedent might be entitled as executor. In the opinion of this court, the court of common pleas made an excessive allowance to said Bates, as administrator of William A. McCall, deceased, on account of such executor’s fees. In contemplation of law the commissions fixed by Section 10837, General Code, for executors and administrators are to be received by them in full compensation for all their ordinary services. When by reason of the death of the original executor or because of his resignation or removal, it becomes necessary to have an administrator de bonis non succeed him, or for any reason successive administrators are appointed to complete the administration of one estate, it is not intended that the costs of administration should thereby be increased, but the statutory commissions should be equitably apportioned between or divided among the successive executors and administrators in proportion to the value of the services rendered by them respectively in such administration. The ordinary rule is that where there aré two such successive officers that the funds allowable for compensation should be equally divided unless the work performed is unequal, and the rule is that one claiming more than such equal proportion must show the reason for such allowance. The work performed by William A. McCall in the settlement of his wife’s estate was comparatively small but was all that any executor would naturally have done during the same period. He had secured the probate of the will, obtained letters testamentary thereunder, made publication and notice of his appointment, taken and filed an inventory of the estate, paid the funeral expenses and all claims against the estate except one doctor’s bill which is in the hands of the administrator de bonis non. He had himself filed no account, but Bates as his administrator has filed such an account for him and must make settlement with the probate court on his- behalf. The duties of Mr. Creed as administrator de bonis non are correspondingly light considering the size of the commissions; he had already filed an inventory of the estate; will have to settle the income tax; pay the doctor’s bill if it is a valid claim against the estate; file his final account; and make distribution of the estate. .

Upon consideration of these respective duties the court is of the opinion that the statutory commissions should be divided equally between the estate of William A. McCall and his successor in the administration of the estate of Sallie J. McCall. And in figuring this statutory compensation commissions are to be taken upon all of the moneys and personal estate coming into the hands of said executor and said administrator de bonis non.

The only services rendered by the counsel of Isaac Bates as administrator of William A. McCall, deceased, with relation to the estate of Sallie J. McCall, for- which compensation can be paid out of said estate, are those relating to the preparation and the filing of the final account in such estate on behalf of William A. McCall, the deceased executor. The allowance fixed by the court of common pleas is considered by this court to be excessive. This court is of opinion that an allowance of $750 would be a sufficient and proper amount to pay for all the services rendered by said counsel to the estate of Sallie J. McCall, and that amount is allowed to be paid out of said estate. In fixing this amount the court is of opinion that the other valuable services rendered by distinguished counsel to Isaac Bates as administrator, have been with reference to the estate of William A. McCall, and should be paid from his estate and not from the estate of Sallie J. McCall.

The claim made by Isaac Bates as administrator, that he should retain all such part of the estate of Sallie J. McCall, deceased, as might be distributable to William A. McCall, can not be allowed. It might be in such an administration that all of the personal estate might be consumed in payment of debts and expenses of settlement. The amount of the estate for distribution can not be determined until final settlement of such estate, and for- that reason it is- provided by law, under the sections above referred to, that it is the duty of the administrator to take possession of the entire estate and make complete settlement before such distribution can be had.

The main question presented for determination is whether William A. McCall did elect by his conduct to take under the will of his first wife, Sallie J. McCall.

It is agreed that no citation was issued by the probate court as provided for in Section 10566, General Code (R. S., 5963, as it stood at the time of the death of the testator), and he never made any formal election in accordance with the terms of Sections 10570 et seq., General Code. The record shows that he had advised with Mr. Strunk, his attorney, in regard to the matter of election, and had it under serious consideration, but that he had expressed himself as unwilling to decide whether or not he would elect, just before taking the final journey which preceded his death. He had been advised that he had one year from the time of citation within which to decide as to his election, and that when he did elect his election would be .made before the probate judge and record would be made thereof in the court. There is nothing in the record to show that he had been advised that any action he might take with reference to the property left by his wife might be construed to constitute an election under the will. It is urged, however, that certain acts did in fact constitute such an election by him. Those most relied on are:

1. That he received rentals from the Fourth street property in which under the will he was given a life estate.

2. That he secured the attachment by agents for different fire insurance companies of “riders” upon the insurance policies.

3. That he occupied the Avondale homestead after the death of Sallie J. McCall, up to the time of his marriage.

4. That he acquiesced in the collection of rents of the Andover Building by the agents for the Colored Industrial School.

5. That he executed a quit-claim deed to the Ohio Humane Society for the Clinton street house.

1. As to the collection of the Fourth street rents there was no other person interested in the matter who would collect the rents if he did not. He signed rent receipts as executor and while he deposited the moneys in his individual account and not in an account as executor, he had in that account at all times a very much greater sum than the total of these rentals and it is not shown that he ever used any part of them either for his personal use or for the purpose of the estate.

2. As to the riders on the insurance policy. In the insurance policy on the Andover Building at Plum and Longworth an endorsement or rider was attached to the policy as follows:

“Cincinnati, May 17, 1909.
“It is herby understood and agreed that the title of the within described property is now vested in the name of the Trustees of the Colored Industrial School. ’ ’

This' rider was signed by the agent and marked with the number of the policy. This was secured by Mr. Stark acting for the trustees. It is questionable whether it would be construed as an assignment of the policy. It is not the form which should have been used for that purpose. The endorsement on the policy covering the Eighth street property was as follows:

“Cincinnati, 0., May 24, 1909.
“It is understood and agreed that William McCall has a life interest in the within described property, and loss, if any, shall be payable to him, as his interest may appear.”

This was marked with the policy number and signed by the agent. This was attached to the policy at the request of Mr. McCall, who desired his interest protected. It is not in the form of an assignment of the policy, and was evidently prepared by the agent as a protective measure for the benefit of Mr. McCall, and was of doubtful value for that purpose. So far as it relates to the matter of election, it can have little probative force.

4. There is nothing in the fact that the agent of the Colored Industrial School was permitted to collect the rents of the Andover Building without objection by Mr. McCall. He had no right to interfere in such collection whether he elected to take under the will or not, as there was an ample personal estate to meet all debts, and if he declined to elect to take under the will, his only interest in that property would be a dower interest which would not entitle him to the management of the property or the collection of its rentals, but could only be asserted by him by proceedings for assignment of dower under Section 12005, General Code.

5. As to the Clinton street property, his conduct in conveying it by quit-claim deed to the Ohio Humane Society argues against rather than for an election to take. He certainly must have been deemed to have some estate, which doubtless was his dower interest which was carried by this deed. Of course if he had elected to take under the will he would hold no interest whatever in this Clinton street property, and the record shows that the attorney who was passing on the title was indifferent as to whether he should give a quit-claim which would carry all his interest by way of dower or instead file a formal election in the probate court to take under the will. He declined to do the latter, but instead gave the deed.

The court is therefore of the opinion that no act of William A. McCall is shown in the record which would authorize it to find that he had in fact elected to take under the will. But under the terms of Section 10571, General Code, he must be deemed to have elected not to take under the will but to have that portion of his wife’s estate given to him under .the law. The court therefore finds that William A. McCall is entitled to receive out of the estate of Sallie J. McCall one-half of the first four hundred dollars and one-third of the remainder of her personal estate.

Having found that William A. McCall has not elected to take under the will, his estate is hot entitled to the rentals received from the Fourth street property, which amount to $2,500, and the court is of the opinion that under the doctrine of acceleration the trustees of the Colored Industrial School became entitled to the Fourth street property at once upon the refusal of William A. McCall to accept the provisions of the will, and said trustees are therefore entitled to receive the rentals thereof from the date of the death of Mrs. Sallie J. McCall. Macknet v.Macknet, 24 N. J. Eq., 277; Jull v. Jacobs, L. R., 3 Chan. Div., 711; Trustees v. Borden, 132 Ill., 144. This rule is recognized in Milikin v. Welliver, 37 O. S., 460; Holdren v. Holdren, 78 O. S., 276.

. Having found that William A. McCall failed to elect to take under the will of Sallie J. McCall, the Avondale home and the household goods therein which had been given to him under the terms of the will, must be sold by the administrator de bonis non and the proceeds applied for the benefit of the disappointed legatees whose share might be reduced by reason of such non-election.

The question remains as to what legatees are affected by reason of such non-election. The court is of the opinion that the intention of the testator under Item 13 was that all of the specific bequests named in her will should be discharged and paid before the bonds owned by her and-the remainder of the stocks owned by her at her death should go to the trustees for the Colored Industrial School, Item 13 taking the form in that respect of a residuary legacy. The bequests therefore made to testator’s cousins, to the National American Woman’s Suffrage Association, and to the other beneficiaries other than said trustees for the Colored Industrial School should therefore be paid in full out of the proceeds of stocks belonging to said estate, provided such stocks are sufficient, as apparently they will be, to make up the full amount of said legacies after the estate of William A. McCall has been paid the amount that it will receive under the terms of this decision.

Bates v. Creed, Nos. 5368 and 5369, are appeal cases, and judgment will be entered therein to the effect that the administration of the estate of Sallie J. McCall must be completed by her administrator de bonis non and not by the administrator of her, executor.

Bates v. Creed, No. 5388, is an error case relating to the same matter, ánd should be dismissed.

Creed v. Bates, Nos. 5788 and 5795, are appeal cases in which the decree should provide that William A. McCall did not elect to take under the provisions of the will of Sallie J. McCall, and her estate should be distributed as above decided.

Creed v. Bates, No. 49 Hamilton Court of Appeals, involves the settlement in the probate court, and the allowance of executor’s commissions and counsel’s fees should be ordered therein as above found.


source: Caselaw Access Project

license: Public Domain

text:
    CONFLICTING ELECTIONS BY TENANTS IN COMMON.
    Circuit Court of Lucas County.
    Mary E. Burch and Charles A. Thatcher v. William Brooks et al.

    Decided, 1909.

      Partition — Proper Procedure Where Inconsistent and Conflicting Elections Are Made — Good Eaith of One Without Means for Carrying Out an Election.

    1. It is not error in an action for partition for the court to refuse to accept inconsistent and conflicting elections by parties in interest, and in lieu thereof adopt the procedure of ordering a sale.
    2. Bad faith can not be assumed upon an election to take by a party in interest who is without means of his own with which to make good the obligations assumed under an election to take, where it appears that he is able to make arrangements for meeting the obligations ■ through the aid of others.

      G. B. Keppel and Gilbert Harmon, for plaintiff in error.

      George B. Orwig, Raymond T. Garrison, Brown, Geddes, Schmettau & Williams, Erslcine H. Potter and Harry Levison, contra.
    Wiudman, J.; Parker, J., and Kinkade, J., concur.

       Affirmed without opinion, 82 Ohio State, 441.

   This is a proceeding in error, resulting from the judgment and order of sale in the court below in a partition proceeding. Partition was sought by a tenant in common of seven acres of land fronting on Auburn avenue in this city. The proceeding was begun on the 29th day of August, 1907. After the order of partition and the appointing of commissioners, they made return that the property could not be divided without injury to the rights of the parties, and it then stood in the position contemplated by the statute as to what action may be taken where property is so indivisible. The statute provides in Sections 5762-5764, R. S., inclusive, for the election by one or more of the tenants in common to take the property at the value as appraised by the commissioners.

The statute is a blank as to what proceedings shall be taken in case of conflicting elections. In speaking of one or more of the OAvners electing to take the property and the order of the court for a deed to such purchaser electing, the Legislature either contemplated the individual election by one of the tenants in common, or the joint election by one or more, but it did not contemplate the election by one to take the whole of the property for himself and the election by another to do the same, because, of course, that sort of a proceeding AA^ould defeat itself. It would be impossible to carry it out, and under such circumstances the courts have, I think, uniformly adopted the procedure of ordering a sale, refusing all the conflicting elections.

The question does not seem at any time to have reached the Supreme Court, but so far as I am advised the lower courts have taken .the course stated. In the case at bar, after the commissioners had made their return, appraising the property at $7,000, elections were filed. On April 15, 1908, Mary E. Burch filed her election, Roland A. Scott, one of the tenants in common, owner of- one twenty-fourth, I believe, of the property, filed an election on the 18th day of April, three days after Mary Burch. That is to say, there was an election in her name. I will call attention later to the dispute with regard to whether it was authorized by her. On the 18th day of May, Charles A. Thatcher, who was a brother of Mrs. Burch, elected. On the 22d day of May, Chester A. Scott, a tenant in common, holding one forty-eighth, if my memory serves me — the fraction is of no consequence — also elected. On the 25th day of May, Mrs. Burch and Mr. Thatcher, her brother, filed a joint election.

On the 25th day of May, according to the docket, or the 1st of June, according to the journal as shown by the transcript of entries, the court of common pleas found that there were several elections, and accordingly overruled them and ordered a sale of the property. A motion was filed in behalf of Mary E. Burch and Charles A. Thatcher to set aside this order of the court, and that motion was overruled. Although there is this discrepancy between the journal and the docket, of course there was no ocasión for filing this motion, until the court had made the order complained of — the order in which the court recognized the several elections as inconsistent, one with another, and therefore ordered a sale. And we think it quite apparent that the joint election of Mrs. Burph and Mr. Thatcher, although it appears to have been made on May 25th, was not made until after and because the court made the order to which I have referred.

Two entries were filed upon the 1st of June by counsel for one of the parties, and the transcript indicates that the judgments were entered on these dates, both the judgment overruling the elections and the subsequent order, directing sale. They were in fact evidently made upon the 25th day of May and before the joint election of Mrs. Burch and Mr. Thatcher. But without regard to that, we think the court was justified in treating the elections which had been previously made and filed as being an election by each tenant in common filing such election to take the whole of the property and not to take it in connection with some one else..

Upon the motion to set aside these orders, which was heard some time in July, a bill of exceptions was preserved, stating in the ordinary form: “Be it remembered,” etc., “this cause coming on to be heard upon the motions and the several elections” (stating them) “and thé order of the court overruling the elections and the motion to set aside the order of sale” (including this procedure in one statement), “the following evidence was offered,” reciting the same; but it does not appear that any of such evidence was given prior to the action of the court which was complained of as wrong. It does not appear from the testimony of Mr. Thatcher that he intended his original election to be in connection with that of Mrs. Burch, nor is there any testimony that Mrs. Burch meant hers to be that of herself and Mr. Thatcher, a thing not apparent on the face of it. It does not appear that these matters were called to the attention of Judge Morris at the time when he made the original order.

It is claimed that the original elections of Mrs. Burch and Mr. Thatcher were meant to be joint; but the election of Mrs. Burch, as I have stated, called for the deed of the whole property to her. It was signed by Charles A. Thatcher as her attorney, and the individual election of Mr. Thatcher filed on the 18th day of May, does not mention Mrs. Burch as joined with him in it. This is signed by his associate partner as his attorney. Here were two elections, as clearly individual elections as it was possible to make them on their face, and whether the parties had it in contemplation to own the property afterwards in common is of no consequence. They were asking to have the deeds made in accordance with the individual elections. Mr. Thatcher was asking to have the deed of the whole property made to him; Mrs. Burch was, through her attorney, Mr. Thatcher, asking to have the deed of the whole property made to her.

If we throw out all the other forms of election, we see no reason why the court should not have made the order it did on the 25th day of May, that is to say, it would be so if the ostensibly joint election had not been filed on the 25th of May. But as I have already indicated, we think the order of the court was really made before the filing of the joint election, and it so appears on the appearance docket.

But there were other elections. An election was made in behalf of Roland A. Scott on the 18th day of April, under a power of attorney, which although questioned, has some evidence tending to sustain it as a valid authority.

Again, disregarding all these contentions, we still have before us the election of Chester A. Scott, made on the 22d day of May, three days before the order of the court, if it was made on the 25th, or nine days before if it was made on the 1st of June; long enough before, so it must be taken into account as an election.

Chester A. Scott, it is said by the testimony of the bill of exceptions and in the arguments of counsel, was a young man who had just arrived at majority, having no means, working on a salary or wage of $70 a month, and it is said that his election was not made in good faith. He made some sort of an arrangement with one Mr. Coates, by which the latter was to take the property off his hands and pay him $45 more than the $7,000, the appraised value of the property. That was evidently all the profit that Chester A. Scott was to get out of it. He was to get $45 for the advance over the appraisal of the property.

Now it is claimed that Mr. Coates is sort of an interloper here. He comes in and asks for a substitution; he also files an election after he is made a party. It is said that he is not a proper party. They were all trying to make their calling and election sure, but in the end there was no way out of the confusion other than for them all to fail.

Let us consider for a moment the election of Chester A. Scott: Is the election in bad faith simply because the young man has no means of his own with which to pay the purchase price? If he has provided the wherewithal with which it is to be paid, and it is quite clear here that Mr. Coates was going to furnish him with $7,000 to make his election good and pay for the property, why should he not have the right as a tenant in common to elect to take the property at the low appraisement and get the benefit of the difference. Was he to be barred of any possible rights in the property because of his poverty, letting some tenant in common who had a plethoric purse go in and take it ? We think that every tenant in common is given by the statute this right to elect, without regard to whether he has a large exchequer, provided he is making the election in good faith and that when the time comes, he have the money in hand to carry it out.

Now, it does not at all appear here that this young man did not intend to carry out this arrangement. On the contrary, it very clearly indicated that he was going to carry it oüt, and that he had the substantial backing of Mr. Coates. ,

It may properly be added that after Judge Morris’ rulings upon the matter and after he had made this order of sale, an affidavit of prejudice was filed and another judge made the final ruling after hearing all the evidence, and refused to overrule the order which had been made by Judge Morris. We think that he was correct in so doing and that his judgment should be affirmed.

We find no error in the proceedings, and judgment of affirmance will be entered, but without penalty.


author: Voorhees, J.,

text:
    LIABILITY OF DRUG STORE FOR. DOW LAW TAX.
    Circuit Court of Licking County.
    Sarah E. Huffman v. E. T. Rugg, Treasurer.
    Decided, March Term, 1902.

      Taxation — Intoxicating Liquor Sold from Drug Store on Physician’s Prescriptions, Held to be Fraudulent — Seizure of the Store on Claim for Dow Tax — Petition for Injunction Against Sale of the Property Dismissed — Extent to which a Drug Store Might be Subjected to Payment of Dow Tax.

    Prescriptions calling for beer or other intoxicating liquor can not be accepted as issued in good faith, notwithstanding the good repute of the physician issuing them has not been called in question, where the writings themselves are not produced, and the testimony regarding them is that the so-called patients went to the physician and specified what they wanted, sometimes specifying the number of bottles wanted, whereupon the physician would write a prescription calling for a certain amount of beer or other liquor and in some cases would add the word “refill,” but gave no direction as to how the liquor was to be taken; and sales of beer or other intoxicants upon such prescriptions are unlawful, and subject the owner of the store as well as the owner of the real estate to liability for the Dow tax, and injunction will not lie to prevent collection of the tax by distraint.

      S. M. Hunter, for plaintiff.

      Charles W. Miller and J. 11. Fitzgibbon, contra.
   Voorhees, J.,

(orally); Douglass, J., and Donaiiue, J., concur.

This action comes into this court on appeal. The object and purpose of the suit is to restrain the defendant from collecting by distress certain taxes that had been levied under what is known as the Dow law. Without taking time to read the petition, I will read the prayer, which states the object of the suit to be:

“That the defendant be restrained from selling or otherwise depriving plaintiff of her property and business, and from ex-eluding her from the possession of the drug store and the property and fixtures therein contained, and from excluding and preventing her from entering and taking possession .of and operating her said business, and commanding said defendant to deliver to the plaintiff her said property, and, upon the final hearing, that the,injunction be made perpetual.”

The amended answer takes issue with the plaintiff’s petition, and there are two or three questions that are presented by the issues which will be necessary for us to determine.

The testimony shows that this property that has been seized by the officers who were attempting to collect this tax was a drug store, situated in the village of Johnstown, this county. It is claimed by the plaintiff that she is the owner of the property, and that there has been no action on her part, during the time in which this levy of taxes was made, subjecting her to any liability under the law for the Dow tax.

It is conceded that the assessment that was made was not against the plaintiff. The assessment is against a man by the name of Friddle; and the contention on the part of the defendant is that this business, that was carried on, was in the property of. the plaintiff, and that Friddle was really the owner of the property; that the attempted sale that was made was a sham, and was done for the purpose of avoiding the tax, and that really he was the owner of the business, carried on the business, and was the owner of the property, which it is. sought to distrain for the payment of this tax.

It seems from the testimony that this property at one time, in '1897, beyond peradventure belonged to the plaintiff; that she was the owner of this drug store; that in 1897 she sold it to Friddle, who gave his notes for a part of the consideration at least, and paid part in cash; that he took charge of the business and carried it on until in May, 1898, at which time, by an arrangement between the plaintiff and Friddle,-the plaintiff again became the owner of the property and the notes that had been given by Friddle in 1897 for a-part of the consideration were surrendered, and the balance Was paid by the plaintiff to Friddle by a check, which has been produced in evidence.

So, one of the issues that has been tried and submitted to'the' court is whether this sale was a bona fide sale, or whether it was a. mere sham between these parties for the purpose of avoid-' ing the tax that was sought to be levied and collected from this property. • ■ . . .

The plaintiff, in her petition, assumes, from- her allegations, ■ that she was the owner of the property; that-she was carrying on the business, and that there were no intoxicating liquors sold \ on the premises by herself or anyone else for her, except on: prescriptions duly issued by reputable physicians, as provided for under the statute. That will be one of the questions that we will have to consider.

But, first, as to the business that was carried on in this property, supposing the plaintiff to be the owner of it. It was assumed to be a drug store, with all the necessary appliances for the purpose of carrying on a drug store; and, from the testimony, it is very clear that, in addition to that, there were sold, in connection with the business, or in the same business, quantities of' beer differing in amount according to the desires and wishes of the purchasers; and the contention on the part of the plaintiff is that while she was carrying on this business after May, 1898, there', were no sales of intoxicating liquors made except upon the. prescription of reputable physicians.

The important question then is: whether this sale was a valid sale or not; or whether it was a mere sham. .An important question is whether these intoxicating liquors — the beer that, ■ from 'the testimony, unquestionably was sold there — was sold in accordance with the law, viz: that it was only sold upon prescrip-' tion issued by reputable physicians, so as to be exempt from-, liability under the statute.

The testimony seems to be (and that will be the finding of the-court) that there -were prescriptions or writings furnished, by some of the parties at least who got beer there, by physicians that we have no reason to doubt are reputable physicians. But, from the testimony and facts that are produced here, can the court find that these prescriptions were such as is contemplated by the statute, and that they -were issued in good faith .to. the parties who received them and obtained beer or intoxicating liquors 'upon them? The testimony indicates that, in many eases at least, the parties who wanted beer would go to a physician and say that they wanted beer, and the physician would write a paper directing that such and such person should receive beer, designating so many bottles of beer upon that prescription. The prescriptions are not produced. They are not offered in evidence, and the court has not an opportunity of inspecting them to see whether they, would comply with what the law certainly contemplates a prescription should be. But these significant facts do appear: that the parties would go to the physician and say to the physician that he wanted so much beer. He specified what he wanted, and in some cases would specify the quantity that he wanted; and upon such a statement as that the physician would give him his pretended prescription, without indicating or prescribing how it should be used. That was left to the option and judgment and wishes of the alleged patient. And after the party got his prescription, he would go and get his beer, the quantity that he wanted, and take it according to his own desires and wishes.

This is the way, in many instances, from the testimony, the sales that were made in. this drug store upon pretended prescriptions, or were made in connection with this drug store or business. Is that such a selling on prescription as is contemplated by the law? It is conceded that this beer.was sold. It is conceded that it was sold in connection with this business or in this place, and that the plaintiff says that she was the owner of it, and had the management and control of it, but she seeks, and the only ground upon which she seeks to exempt her property that would be subject, or might be, under the law, whether she was the real keeper or not, is that it was sold upon a prescription made by a reputable physician.

But, we are led to the conclusion, from this state of facts, that these prescriptions are not such as the law contemplates; and we have an authority which we are inclined to give faith and credit to, and I believe the decision was by the author of the law — Judge Dow; I think he is the one who drafted this law, and lie ought to know or have some idea as to what was intended by it when he drafted the law. He takes up the subject as to when a prescription is issued in compliance with it:

“The plaintiff having alleged that said assessment was illegality levied, the affirmative is upon him to show this fact.
‘ ‘ The evidence shows that the plaintiff and his clerks between the dates mentioned, sold intoxicating liquors by the bottle to be drank in said drug store, upon his own written prescription so-called and upon the prescription of another physician; that often these prescriptions were marked ‘re-fill’ upon which additional sales were made as often as called for, in some instances ten or twenty times.” 8 Ohio Decisions, 116.

The druggist in this ease was a physician, and the sales were frequently made upon his prescription to his alleged patient, but not entirely so, as sometimes they were issued upon the pre-. scription of another physician.

“That these prescriptions” says the report, “were made out by plaintiff and by him filled for every imaginary ailment the customer could suggest.”

And, as we go along, we will try and make the application of the facts in the case that we have in hand with the conditions and facts that were disclosed in this case. From the testimony, many of these alleged patients would go to the physician and tell him what he wanted; that he wanted beer; upon his statement, the prescription would be issued for so many bottles of beer, without any direction as to how, or when, or in what quantities he should take it, or use it.

“The evidence shows ’a studied effort upon the part of the plaintiff to evade the provisions of the statute, and he now comes into a court of equity invoking its aid in assisting him in escaping the payment of the tax.
“Suppose the drug store was a saloon, and the proprietor sought to evade his liability in this way, could he successfully do it ? A drug store is entitled to no greater privileges.
“The plaintiff testified that all the sales made by him were upon written prescriptions, issued as before said and which were now in his possession, but failed to produce said prescriptions or any of them.”

That is the situation here.

“The rule that the best evidence must be produced is applicable in this case as in any other.
“He having' affirmed that the sales were made only upon written prescriptions and defendant having denied this averment, the plaintiff, when within his power, must produce the same.
“It may be that if the writing had been produced, the court upon inspection would have found that it was not a prescription; it is not for the witness to state what the paper was, but for the court to determine from its language.
“Suppose the paper had read as follows:
“July 4, 1896. ‘Let John Jones have 8 oz. spirits frumenti— Refill.’ (Signed) : ‘Jas. A. Hubbell, M. D.’ .
■ ‘ ‘ This is not a prescription under Section 8 of the Dow law.
“It is not addressed to any one — it does not specify the manner of use — it leaves it all to the judgment of the patient as to the quantity he shall drink at any one time.
. “The Century Dictionary defines a prescription to mean ‘a statement, usually written, of the medicine or remedies to be used by a patient, and the manner of using the same. ’ ’ ’

Now, as to these prescriptions in this case: They were not produced, but evidence was allowed to come to the court for the purpose of showing what these prescriptions were; and, giving ■them the most liberal construction, they do not meet the requirements, as we understand the law, when it is to be tested as to whether or not it was a prescription issued in good faith by a reputable physician. The law means something when it uses the term ‘ ‘ issued in good faith. ’ ’ ■

As we said before, we do not know the reputation of these physicians; but, when we have the facts before us, of the manner in which these prescriptions were filled, and the way these parties sought the physicians for the purpose of getting them, and the indefinite manner in which they were given and to be used, they certainly do not come within the purview of the law which defines what is a prescription. There was no direction as to its use.

Therefore, from the testimony, we must find as a fact that these sales of beer, after the plaintiff became the owner of this property — granting that her sale and' purchase was an honest and fair one — the sales of intoxicating liquors, which she does not deny, were unlawful. Her excuse is, and the only excuse she offers here, that sales of that character were upon prescriptions, in good faith, by-reputable physicians. But the sales then were unlawful, and it makes no difference who was the operator of the business; the object of the law is to reach the business itself ; and it is not to punish the person, but it is for the purpose of regulating and controlling the traffic in intoxicating liquors; that was the reason and object of the passage of the law, and the business itself is what is to respond, if it is carried on in.a place, and it makes no difference by whom.

Then, in this case, we would hold as a matter of fact that, after this alleged sale in May, 1898, the business of selling intoxicating liquors carried on in this drug store, the real estate of which belonged to the plaintiff beyond peradventure, was in violation of the law, for the reason that it was, in fact, not sold upon prescriptions issued in good faith by a reputable physician.

Then, what is the effect ? The business is what is to respond; and if the business was carried on in the plaintiff’s property, carried on for her as she conceded, then this property must answer for the tax if it is not paid. It would then become a lien, by operation of lav, upon the real estate. It would be if it was carried on by Friddle, and the plaintiff had no connection whatever with it — if it was not her business; but, if it was carried on by Friddle in her property, the real estate would be liable for it; it would be a lien upon the real estate; and the officers who were seeking to collect the tax would have a lien upon the real estate, but they would have in addition.to that a right to levy by distress if the property is claimed by another than the one who is running the business upon certain kinds of property; it would be, in the language of the statute, upon the bar, and the bar fixtures and all other property incident and necessary to carrying on the business.

Now, we will grant for a moment that that would not reach this drug property (and that is the strongest contention that counsel for the plaintiff make here); that while that which was essential and necessary to carry on this business .could be reached, in an effort to reach after personal property, and not to enforce a lieu upon the real estate, but reaching only after personal property, such property must of necessity be limited by the statute itself to bar fixtures and the property incident and necessary to carry on the business of trafficking in intoxicating liquors. And, speaking for myself upon this proposition, and the court really do not differ upon it, if that was all that was in the case, the drugs and things that were in a drug store carried on in good faith, could not, perhaps, be taken under the section of the statute authorizing distress by the officers; and the seizure would be limited to that which appertained to the bar or the saloon part of the drug store, if we may so designate it.

But, there is another principle that applies. There is no question in this case as to the real estate, but the plaintiff seeks to invoke the aid of a court of equity to restrain the officers from taking this property — the drug store and fixtures and all the things that are incident to that business; and her contention is that they are seeking to collect the tax against her when she was not in the business; that they are seeking to take her property for the payment of a liability of Friddle, and, therefore, she has a right to come into a court of equity and enjoin the collection of that tax. ■

Now, it is true that where there has been an illegal levy of taxes, or an illegal assessment of taxes, the statute does afford the party against, whom it is assessed the right to come into a court of equity and enjoin the officers from collecting the tax. This is an innovation upon the common law. Without the aid of the statute that could not be done, because a party would have to resort to his legal remedy. But by the statute, Section 5848,1 believe it is, there has been this innovation made upon the common law, and it is upon the strength of that statute, doubtless, that this proceeding was brought, and the contention is made in behalf of the plaintiff that this is a proper proceeding.

Section 5848 of the Revised Statutes reads as follows:

‘ ‘ Courts of common pleas and superior courts shall have jurisdiction to enjoin the illegal levy of taxes- and assessments, or the collection of either. ’ ’

Our construction of this section of the statute is that it applies where the illegal levy is made, or the assessment made is against the party that is seeking the aid of a court of equity. In other words, if this was Friddle’s property, and they were seeking to restrain the officers from collecting the tax levied against him, and the proof shows that the levy was against him and in his name, if it was illegal he could enjoin under this statute, because it expressly says so; but, does it give a third party that right? Does the plaintiff in this case stand as though it had been levied against her and illegally levied? We think not, and for this reason: If she is the owner of the property, and they seek to enforce a claim against the property — not against her, but against her property — why then she could not come into a court of equity for the reason that she would have an adequate remedy at law. It would be analogous to this:' Suppose that an attachment issues against one party, and that attachment is levied upon the property of a third party. Now, would it be contended that the third party who was a party to the other suit, could come into a court of equity and ask to have the party enjoined from selling and appropriating his property? His remedy at law would be in replevin, or he could invoke the remedy in the trial of the right of property which is given by statute — a definite and adequate remedy at law. In this case, if the property is Mrs. Huffman’s, and the county or state is seeking to take her property to answer the liabilities of Friddle, there is no reason why she would not have her adequate remedy at law, either by replevin, or the trial of the right of property. As I say, the question as to real estate is not here involved, but it is the personal property — the drug store — which she claims had no connection whatever with this other business; and, if so, she would have her adequate remedy at law.

Therefore, without taking more time, we think that the plaintiff has no standing in a court of equity. Conceding that she is the owner of the property — and that is what she says — under the law, and according to her claim in her petition, and according to the proof as we find it, the sales that she was permitting to be made there were clearly in violation of the law, because intoxicating liquors were sold in violation oi the statute. She then would have no standing in a court of equity. If she has a remedy, she must seek it at law.

And, for these reasons, we think that the petition in this case should be dismissed.

Judge Hunter: Does Your Honor find, as a matter of fact, that the transfer was ma.de to her?

Judge Voorhees: Why, yes, I think that we find that. (Judge Voorhees confers with Judge Douglass and Judge Donahue.)

Judge Voorhees: In place of finding specifically that there was an honest sale and transfer of the property, the court is of the opinion that it is a fraud — an attempted fraud on her part and that of Friddle to avoid the tax, and, therefore, she could not come into a court of equity, and that would be the finding upon that matter.

Judge Hunter: Well, on that matter, 1 would like to file a motion for a new trial—

Judge Donahue: I don’t think you understand it, judge— we find that her attempt to evade the law and not paying the tax was a fraudulent transaction on her part that bars her from any relief in a court of equity, or to any finding of fact on these questions.

Judge Hunter: But still, I want to know whether the court finds, as a matter of fact, that that transfer was made to her, and that she was the owner of the property.

Judge Donahue: You can file a motion for a new trial.

Judge Hunter: Yes. sir, and I desire to argue it.

Judge Donahue: We find the testimony shows her steeped in fraud in an attempt to evade a statute of this state, and that she is not entitled to any finding further than that fact, and goes out of the court of equity. That is the finding that the court will make, if you want a special finding.

Judge Hunter: On that matter, I desire to be heard upon a motion for a new trial when the court has time to hear me. I also ask the court to remit the penalty.

Judge Voorhees: We will consider that.

- Judge Donahue: When do you wish to argue the motion for a new trial,'Judge Hunter?

Judge Hunter: I want a finding, because I can then take the question whether you can distrain; if you hold, as a matter of law, that that transfer is good, and then, notwithstanding there are no taxes charged against her, yet you can distrain her property — that is all the point I wish to raise in the case.

Judge Donahue: But, there are two points upon which we dismiss the case. The first is that that there being no tax assessed against her, but her property sought to be taken, her complete remedy is at law. A person who has a tax charged against him is entitled to go into a court of equity to have that stricken off. The second point is, that your client has attempted a fraud upon the statutes of the state — if it is her business, then she has attempted a fraud upon the state through these fraudulent prescriptions, ánd has no standing in a court of equity, and' we make no other finding but those two.

Judge Hunter: And I protest against that finding. I find myself absolutely unable to concur with the court upon that statement. I simply stand upon my legal rights. I am satisfied that the transfer was in perfect good faith, and the reason was because Mr. Frid’dle could not pay, and the property had to be taken back.

Mr. Miller: There is no testimony to that effect.

Judge Hunter: Mr. Friddle himself testified to it, and there isn’t a word to the contrary from anybody. If the court finds that this transfer was made, that she owned the property at this time, and that the tax was not charged against her, but charged against Jacob Friddle, that raises a point of law, that you can not take any man’s property from him by distraint unless you charge him with it. That is the point I make, and the other point that is raised by the court, that she had not the right to bring this action for an injunction — you hold that as a matter of law — I disagree with the court upon that point; and those are the only two points that I wash to raise; I can raise them without any further trouble if the court finds, as a matter of fact, that that transfer was made.

Judge Donahue: After finding that the party comes into court with unclean' hands, the court is not supposed to make any further finding, and if our finding is wrong upon that—

Judge Hunter:' The statute makes no discrimination.

Judge Donahue: We do.

Judge Hunter: In a suit to enjoin taxes, the statute does not say anything about clean hands — well, that argument is over, you can not turn á person of bad character out of court for that reason.

Judge Donahue: Yes, you can; out of a court of equity. If they have attempted a fraud upon the statutes of the state, they haven’t any right to come into a court of equity. We always want counsel to have the fullest opportunity to review a case, and we think we will go farther for you and find that that was a bona fide transfer. We will give you that finding.

Judge Hunter: You find those three facts, then?

Judge Donahue: Yes, sir.

Judge Hunter: I am perfectly willing that you find that the

law was violated, and that the transfer Avas made, and that the tax was not charged against her, and j^u hold that she was not entitled to this remedy of injunction.

That is all I will ask of Your Honor.

Judge Voorhees: We remit the penalty and dismiss the petition.


author: Craine, J.,

text:
    ASSESSMENTS FOR. IMPROVEMENT OF PUBLIC HIGHWAYS.
    Circuit Court of Licking County.
    Charles C. Kasson, on Behalf of Himself and Others, v. The Board of County Commissioners of Licking County et al.
    Decided, 1908.

      Roads — Construction of Provision for Assessing Lands Lying Within One Mile of the Improvement — Injunction Against Collection of Assessment for Lands Lying Beyond Terminus — Taxing Districts— Equitable Distribution of Burden — Sections 6928, 7254 and 7332.
    Under the one mile road assessment act the taxing district is confined to one mile of the improvement Avithin a line drawn at right angles with the termini thereof.

      Smythe & Smythe, for plaintiffs.

      J. R. Fitzgibbon, Prosecuting Attorney, contra.
    Taggart, J.; Donahue, J., concurs; Craine, J., dissents in a separate opinion.
   This cause came into this court on appeal from the judgment of the common pleas court, and is submitted to the court upon the pleadings and agreed statement of facts-. The plaintiffs seek an injunction restraining the commissioners and tax-collecting officers of the county from collecting or attempting to collect assessments levied by the commissioners upon the respective lots of lands owned by said plaintiffs in said county, and beyond the termini of the improvement, to pay for which said levies were made.

It appears from the agreed statement of facts that on the, 8th day of May, 1907, the board of county commissioners ordered the improvement of that portion of a certain public highway in said county of Licking, known as the Johnstown and Sunbury road, extending from the county line of Delaware and Licking counties, southeasterly to the west corporation line of the village of Johnstown, in said county of Licking, by grading and covering the surface thereof with stone, and by authority of and in accordance with the provision of Section 4670-14 of the Revised Statutes of Ohio, and the question presented in this case involves the construction of that statute.

It appears further from the agreed statement of facts that the commissioners have levied an assessment against the lots and parcels of real estate lying within one mile of the southeasterly terminus of the improvement, and lying without the village of Johnstown, making no levy whatever upon the village of Johnstown or upon the lots or parcels of land' therein situate, although all of said village is within one mile of said terminus.

It is also shown by the agreed statement of facts that if the commissioners have a right to levy a tax upon the real estate in the municipality of Johnstown, then the original petition praying for this improvement did not have the requisite number of signers therefor, and consequently the commissioners were without jurisdiction to proceed with said improvement or to levy said tax.

We are of the opinion that if this statute in question under which these proceedings were had authorized the commissioners to levy an assessment against lands lying within one mile of the terminus of said improvement, that it necessarily follows that the village of Johnstown and the property therein situated would be subject to such a levy. This, we think, clearly appears, not only from the general legislation on the subject of roads and highways and improvements thereof, but the adjudicated eases are, to our mind, all to that effect.

While the exact question was not before the court in the ease of Lewis v. Layland et al, 46 Ohio State, 663, yet the reasoning of the court in that case applies with equal force to this one.

■ On page 675, Judge Bradbury, announcing the opinion of the court, says:

“It is true that Section 2640 in very general terms gives to municipal councils the ‘care, supervision and control of all public highways, * * * within the corporation.’ The power conferred by this section is full and ample; but it contains no words directly excluding that conferred by the statute upon the county commissioners. If it has that effect, it amounts to a repeal of the latter statute by implication. Repeals of this kind are not-favored. ’ ’

Again, on the same page, he says:

“The Legislature, by the provisions of Section 2640, R. S., bestowed a very general control over the highways within municipal corporations, but at the same time they have preserved to the county commissioners a power to improve those public highways which are a part of the general road system of the county, though they may happen to lie partly within the limits of the municipality. ’ ’

As we understand the pleadings and the agreed statement of facts, the lands and parcels of land owned by the plaintiffs and those in interest with him, lie beyon this terminus of the improvement, and therefore from the conclusion we have reached would be entitled to an injunction, not only because the assessment is not uniform to the prejudice of plaintiff and those for whom he sues, but because the commissioners were without jurisdiction to order the improvement or to levy the assessment, if they are at all entitled to levy an assessment within one mile from the end of the improvement, as well as on the sides. So it could make no difference whatever in the disposition of this case before us whether the commissioners have such a right or have not such a right.

But there is another important question involved in this case which ought to be determined, and one that we are not so clear upon, and that is as to whether or not the commissioners have any right to levy an assessment upon the lots and parcels of land within one mile from the end of the improvenemt or whether the assessment should be confined to the sides. The legislation on this subject is very indefinite and uncertain, and is one that ought to go to the Supreme Court at an early date for an authoritative determination, because it’is of vital importance to the entire state. A majority of this- court, however, have reached the conclusion that the commissioners have ho such authority. If this section were standing alone we would have no hesitation in saying that they would have such authority, but in view of the other legislation on kindred subjects and the construction given thereto by the Supreme Court of this state, we are forced to a different conclusion.

Section 4786, which applies to one mile assessment pikes, provides, in so many words, that the assessment shall be levied “on real and personal property within one mile on each side of the free turnpike road.”

Section 4835, which applies to the. two mile assessment pikes provides:

“No lands shall be so assessed which do not lie within two miles of the proposed improvement, and the distance from either side, end, or terminus-of the road; and the lands that have been-assessed for the expense of any improvement made under the provisions of this chapter, shall not be re-assessed under subsequent proceedings for an extension of the same, unless- the prior assessment be not deemed proportioned to the whole benefit resulting to such lands.”

The language of both these sections in clear and unequivocal, and the Supreme Court of Ohio, in considering Section 4786, in the case of Lear v. Halstead, 41 Ohio State, page 566, says, on page 567:

“The provision in this- section which requires that extra taxes shall be levied on real and personal property within one mile on each side of the turnpike road, does not, we think, embrace lands within one mile as measured from the end of the road, but only as measured from either side of the road and between the termini of the same. The lands- therefore, situated beyond the terminus of the turnpike, and lying outside of the line drawn from the terminus at right angles with the last course of the road were not subject to taxation. The legislative intent seems plain. If it had been designed to extend the tax limits, so as to include territory and personal property beyond the end of the turnpike, the Legislature, it is presumed, would have made it manifest by appropriate language. It did not fail to do so in the act commonly known as the two mile improvement law, which provided that no lands should be assessed which did not lie within two miles of the proposed improvement, and that such distance of two miles might ‘be computed in any direction from either side, end or terminus of said road.’ ”

The section under consideration, to-wit, 4670-14, of the Revised Statutes, provides, “that when a majority of the resident owners of any real estate lying and being within one mile of any public road, shall present a petition, ’ ’ etc.

In view of the announcement made by the Supreme Court in the case of Lear v. Halstead, supra, “That if the Legislature had designed to extend the tax limits, so as to include territory and personal property beyond the end of the turnpike, the Legislature, it is presumed, would have made it manifest by appropriate language,” it appears to a majority of the court that the correct construction of this statute would require that the levy should be limited within one mile on each side of the improvement, and this construction seems to us to be the the only possible one, in view of the fact that there is one section which expressly provides that the taxing district shall include the property within two miles of the endj as well as the sides, and in view of the fact that the Legislature is presumed to have known the construction given by the Supreme Court in the 41st Ohio State, and to have known that that court said that if it is intended to extend the taxing district beyond the terminus it ought to use plain and appropriate words to do so.

Another argument in favor of this construction is that under the provisions of this section that the lands within a mile of the terminus of the road would be subject to a second assessment for the continuation of the improvement and in the only statute providing for the extension of this taxing district, to-wit, the two mile assessment statute, it is expressly provided that this shall not be done, unless it appear that the property has not paid its full share of the cost of the improvement, with reference to the benefits conferred. But we find no such provisions in this section before us, and the construction contended for by the defendant would necessarily leave this land subject to a second assessment'without regard to the amount paid on the first assessment, an altogether unfair distribution of burdens for ■ public improvements.

We are therefore of the opinion that the taxing district for this improvement must be confined to one mile on each side of the improvement, and within a line drawn at right angles with the termini thereof, and that being true the county commissioners had jurisdiction to order the improvement and to levy the assessment upon those lands, but had no authority to levy an assessment on the lands beyond the improvement, and as to these levies the defendants will be enjoined from collecting or attempting to collect the same.

Motion for new trial will be overruled and exceptions noted, and if counsel desire a finding of fact from the agreed statement of facts, they can prepare the same and file it, or they can use the agreed statement of facts used in this court for the purpose of prosecuting error to the Supreme Court.

Craine, J.,

dissenting.

I do not concur in the construction placed by a majority of the court on Section 4670-14, R. S. The majority of the court hold, as I understand them, that only the lands lying and being within one mile on each side of the improvement can be assessed.

Under the two mile assessment act, found in Section 4835, R. S., the law reads:

“And no lands shall be so assessed which do not lie within two miles of the proposed improvement, and the distance of two miles may be computed in any direction from either side, end, or terminus of the road.”

• Under this act, the Legislature made it- very plain and certain that the assessment might extend to any land lying within two miles from the end of the improved road.

Under the one mile assessment law, Section 4786, R. S., reads as follows, in part:

‘ ‘ Extra taxes levied as hereinbefore provided shall be on real and personal property within one mile on each side of the free turnpike road. ’ ’

Under this section • the Legislature made it very plain and certain that the assessment could be made only- on lands lying -within one mile on each side oE the improvement.

. Section 4670-14, R. S., the one under which this improvement ■was made, provides that:

“When a majority of the residence owners of any real estate lying and being within one mile of any public road,” etc.

My interpretation of this statute is that it means exactly what it says, and if land lie and be within one mile of this improvement, it may be assessed its part for the construction of the same.

In 66 O. S., 621, a portion of the syllabus reads as follows:

“But the intent of the law makers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt and express plainly, clearly and distinctly the sense of a law-making body, there is no occasion to resort to other means of interpretation. The question is not what did the General Assembly intend to enact, but what is the meaning of that which it did enact? That body should be held to mean what it has plainly expressed, and hence no room is left for construction.
.“The language of the act of May 12, 1902, entitled ‘An Act to amend Section 6710, as amended 83 O. L., 255,.of the Revised Statutes, ’ is plain and free- from doubt, and effect must be given to its clear import without regard to the consequences which - may result.”

In my judgment, the language found in Section 4670-14, R. S., is plain and unambiguous. It says that the “real estate lying and being within one mile of any public improvement shall he taxed; I think that if the land lies and is within one mile of a public improvement it is assessable, irrespective of whether it is one mile -from an end or one mile on the side. -

The majority of- the court call particular attention to the fact that under the two mile assessment act above referred to, the Legislature expressly provided that the assessment might be within two miles of the end of the improvement, and hence argue that if the Legislature had intended Section 4670-14 to extend to and include lands lying and being within one mile of the end of the improvement, it would have said so; but it will be Recalled that under the one mile assessment act just referred tp, when the Legislature wanted the assessment to apply only to lands being within one mile on each side of the improvement,'.it said so; and I might argue with equal force that if the Legislature had intended Section 4670-14, R. S., to apply only to lands.lying and being within one mile on each side of the.improvement, it would have said so.

It is said also-by the majority of the court that it would be inequitable to assess this upon the lands within one mile of the end of the road, because within that distance the town.-of. Johns-town is located and that, that property might be re-assess'éd. With that I am not concerned. That is a question for the Legislature. It has, however, provided a means of eliminating all embarrassment that might arise from such' a condition', -because under Section 4670-14, Revised Statutes, the land' is to bd 'á's.sessed according to the benefits, and that question can be taken care of under the method of assessing. There is,no doubt but what the county commissioners would have a.right- to.improve this road through the town of Johnstown. This is held- -in 46 O. S., 663. There is no doubt but what the Legislature had the constitutional right, in passing Section 4670-14 to include lands lying and being within one mile from the end of- the road, and,I think that the language used in that section clearly imports lands lying and being within one mile from the end of. the road..