text:
    STATE, Plaintiff-Appellee, v. JENNINGS, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24067.
    Decided May 8, 1957.
    John T. Corrigan, Pros. Atty., By Thomas Osborne, Asst. Pros. Atty., for plaintiff-appellee.
    A. L. Kearns, for defendant-appellant.
   OPINION

Per CURIAM:

In our opinion the judgment of conviction in this case must be reversed for errors of law in admitting evidence offered by the State over the objection of the defendant which was prejudicial to the substantial rights of the defendant whereby he was prevented from having a fair and impartial trial.

In view of the fact that the evidence relied upon by the State to show the guilt of the defendant was predicated solely upon one witness, an alleged accomplice, who had first accused a person other than the defendant, it was highly important in this trial that the evidence admitted should be relative and probative of the counts contained in the indictment, to which defendant pleaded not guilty.

The admission into evidence, over the objection of the defendant, of the names of persons known by him who are now in the Ohio Penitentiary on conviction of violation of the narcotics law unquestionably tended to prejudice the minds of the jury in the nature of guilt by association even though there was no evidence of violations of law by the defendant other than the testimony of the one witness, the alleged accomplice. Also the admission into evidence, over the objection of the defendant, of the collateral matter of defendant’s domestic relations, taken together with the above cited evidence, could have no other effect than to prejudice the minds of the jury and thus prevent a fair trial.

For these reasons, the judgment of the Court of Common Pleas is reversed and the cause remanded for further proceedings according to law.

SKEEL, PJ, HURD and KOVACHY, JJ, concur.


source: Caselaw Access Project

author: By MR. JUSTICE CLARK.

license: Public Domain

text:
    TANK TRUCK RENTALS, INC., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE.
    United States Supreme Court.
    No. 109.
    Decided March 17, 1958.
   OPINION

By MR. JUSTICE CLARK.

In 1951 petitioner Tank Truck Rentals paid several hundred fines imposed on it and its drivers for violations of state maximum weight laws. This case involves the deductibility of those payments as “ordinary and necessary” business expenses under §23 (a) (1) (A) of the Internal Revenue Code of 1939. Prior to 1950 the Commissioner had permitted such deductions,1 but a change of policy that year 4caused petitioner's expenditures to be disallowed. The Tax Court, reasoning that allowance of the deduction would frustrate sharply defined state policy expressed in the maximum weight laws, upheld the Commissioner. 26 T. C. 427. The Court of Appeals affirmed on the same ground, 242 F. 2d 14, and we granted certiorari. 354 U. S. 920 (1957). In our view, the deductions properly were disallowed.

Petitioner, a Pennsylvania corporation, owns a fleet of tank trucks which it leases, with drivers, to motor carriers for transportation of bulk liquids. The lessees operate the trucks throughout Pennsylvania and the surrounding States of New Jersey, Ohio, Delaware, West Virginia, and Maryland, with nearly all the shipments originating or terminating in Pennsylvania. In 1951, the tax year in question, each of these States imposed maximum weight limits for motor vehicles operating on its highways. Pennsylvania restricted truckers to 45,000 pounds, however, while the other States through which petitioner operated allowed maximum weights approximating 60,000 pounds. It is uncontested that trucking operations were so hindered by this situation that neither petitioner nor other bulk liquid truckers could operate profitably and also observe the Pennsylvania law. Petitioner’s equipment consisted largely of 4,500-5,000 gallon tanks, and the industry rate structure generally was predicated on fully loaded use of equipment of that capacity. Yet only one of the commonly carried liquids weighed little enough that a fully loaded truck could satisfy the Pennsylvania statute. Operation of partially loaded trucks, however, not only would have created safety hazards, but also would have been economically impossible for any carrier so long as the rest of the industry continued capacity loading. And the industry as a whole could not operate on a partial load basis without driving shippers to competing forms of transportation. The only other alternative, use of smaller tanks, also was commercially impracticable, not only because of initial replacement costs but even more so because of reduced revenue and increased operating expense, since the rates charged were based on the number of gallons transported per mile.

Confronted by this dilemma, the industry deliberately operated its trucks overweight in Pennsylvania in the hope, and at the calculated risk, of escaping the notice of the state and local police. This conduct also constituted willful violations in New Jersey, for reciprocity provisions of the New Jersey statute subjected trucks registered in Pennsylvania to Pennsylvania weight restrictions while traveling in New Jersey. In the remainder of the States in which petitioner operated, it suffered overweight fines for several unintentional violations, such as those caused by temperature changes in transit. During the tax year 1951, petitioner paid a total of $41,060.84 in fines and costs for 718 willful and 28 innocent violations. Deduction of that amount in petitioner’s 1951 tax return was disallowed by the Commissioner.

’ It is clear that the Congress intended the income tax laws “to tax earnings and profits less expenses and losses,” Higgins v. Smith, 308 U. S. 473, 477 (1940), carrying out a broad basic policy of taxing “net, not . . . gross, income . . . .” McDonald v. Commissioner, 323 U. S. 57. 66-67 (1944). Equally well established is the rule that deductibility under §23 (a) (1) (A) is limited to expenses that are both ordinary and necessary to carrying on the taxpayer’s business. Deputy v. du Pont, 308 U. S. 488, 497 (1940). A finding of “necessity” cannot be made, however, if allowance of the deduction would frustrate sharply defined national or state policies proscribing particular types of conduct, evidenced by some governmental declaration thereof. Commissioner v. Heininger, 320 U. S. 467, 473 (1943); see Lilly v. Commissioner, 343 U. S. 90, 97 (1952). This rule was foreshadowed in Textile Mills Securities Corp. v. Commissioner, 314 U. S. 326 (1941), where the Court, finding no congressional intent to the contrary, upheld the validity of an income tax regulation reflecting an administrative distinction “between legitimate business expenses and those arising from that family of contracts to which the law has given no sanction.” 314 U. S., at 339. Significant reference was made in Heininger to the very situation now before us; the Court stated, “Where a taxpayer has violated a federal or a state statute and incurred a fine or penalty he has not been permitted' a tax deduction for its payment.” 320 U. S., at 473.

Here we are concerned with the policy of several States “evidenced” by penal statutes enacted to protect their highways from damage and to insure the safety of all persons using them. Petitioner and its drivers have violated these laws and have been sentenced to pay the fines here claimed as income tax deductions.6 It is clear that assessment of the fines was punitive action and not a mere toll for use of the highways: the fines occurred only in the exceptional instance when the overweight run was detected by the police. Petitioner’s failure to comply with the state laws obviously was based on a balancing of the cost of compliance against the chance of detection. Such a course cannot be sanctioned, for judicial deference to state action requires, whenever possible, that a State not be thwarted in its policy. We will not presume that the Congress, in allowing deductions for income tax purposes, intended to encourage a business enterprise to violate the declared policy of a State. To allow the deduction sought here would but encourage continued violations of state law by increasing the odds in favor of noncompliance. This could only tend to destroy the effectiveness of the State’s maximum weight laws.

This is not to say that the rule as to frustration of sharply defined national or state policies is to be viewed or applied in any absolute sense. “It has never been thought . . . that the mere fact that an expenditure bears a remote relation to an illegal act makes it nondeductible.” Commissioner v. Heininger, supra, at 474. Although each case must turn on its own facts, Jerry Rossman Corp. v. Commissioner, 175 F. 2d 711, 713, the test of nondeductibility always is the severity and immediacy of the frustration resulting from allowance of the deduction. The flexibility of such a standard is necessary if we are to accommodate both the congressional intent to tax only net income, and the presumption against congressional intent to encourage violation of declared public policy.

Certainly the frustration of state policy is most complete and direct when the expenditure for which deduction is sought is itself prohibited by statute. See Boyle, Flagg & Seaman, Inc., v. Commissioner, 25 T. C. 43. If the expenditure is not itself an illegal act, but rather the payment of a penalty imposed by the State because of such an act, as in the present case, the frustration attendant upon deduction would be only slightly less remote, and would clearly fall within the line of disallowance. Deduction of fines and penalties uniformly has been held to frustrate state policy in severe and direct fashion by reducing the “sting” of the penalty prescribed by the state legislature.

There is no merit to petitioner’s argument that the fines imposed here were not penalties at all, but merely a revenue toll. It is true that the Pennsylvania statute provides for purchase of a single trip permit by an overweighted trucker; that its provision for forcing removal of the excess weight at the discretion of the police authorities apparently was never enforced; and that the fines were devoted by statute to road repair within the municipality or .township where the trucker was apprehended. Moreover, the Pennsylvania statute was amended in 1955, raising the maximum weight restriction to 60,000 pounds, making mandatory the removal of the excess, and graduating the amount of the fine by the number of pounds that the truck was overweight. These considerations, however, do not change the fact that the truckers were fined by the State as a penal measure when and if they were apprehended by the police.

Finally, petitioner contends that deduction of the fines at least for the innocent violations will not frustrate state policy. But since the maximum weight statutes make no distinction between innocent and willful violators, state policy is as much thwarted in the one instance as in the other. Petitioner’s reliance on Jerry Rossman Corp. v. Commissioner, supra, is misplaced. Deductions were allowed the taxpayer in that case for amounts inadvertently collected by him as OPA overcharges and then paid over to the Government, but the allowance was based on the fact that the Administrator, in applying the Act, had differentiated between willful and innocent violators. No such differentiation exists here, either in the application or the literal language of the state maximum weight laws.

Affirmed.

      . “Sec. 23. DEDUCTIONS FROM GROSS INCOME.
      “In compiling net income there shall be allowed as deductions:
      “(a) Expenses.—
      “(1) Trade or business expenses.—
      “(A) In General. — All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business . . . .” 53 Stat. 12, as amended, 56 Stat. 819.

      . IT:P:2 — WTL; 5 CCH 1950 Fed. Tax Rep. 116134.

      . 1951 — 1 Cum. Bull. 15.

      . Delaware, Del. Laws 1947, c. 86, §2; Maryland, Flack’s Md. Ann. Code, 1939 (Supp. 1947), Art. 66%, §254, and Flack’s Md. Ann. Code, 1951, Art. 66%, §278; New Jersey, N. J. Rev. Stat., 1937, 39:3-84; Ohio, Page’s Ohio Gen. Code Ann.. 1938 (Supp. 1952), §7248-1; Pennsylvania, Purdon’s Pa. Stat. Ann., 1953, Tit. 75, §453; West Virginia, W. Va. Code Ann., 1949, §1546, and 1953 Supp., §1721 (463).

      . N. J. Rev. Stat., 1937 (Cum. Supp. 1948-1950), 39:3-84.3.

      . Because state policy in this case was evidenced by specific legislation, it is unnecessary to decide whether the requisite “governmental declaration” might exist other than in an Act of the legislature. See Schwartz, Business Expenses Contrary To Public Policy, 8 Tax L. Rev. 241, 248.

      . Unlike the rest of the States, Pennsylvania imposed the fines on the driver rather than the owner of the trucks. In each instance, however, the driver was petitioner’s employee, and petitioner paid the fines as a matter of course, being bound to do so by its collective bargaining agreement with the union representing the drivers.

      . See, e. g., United States v. Jaffray, 97 F. 2d 488, aff’d sub nom. on other grounds, United States v. Bertelsen & Petersen Engineering Co., 306 U. S. 276 (1939) ; Tunnel R. Co. v. Commissioner, 61 F. 2d 166; Chicago, R. I. & P. R. Co. v. Commissioner, 47 F. 2d 990; Burroughs Bldg. Material Co. v. Commissioner, 47 F. 2d 178; Great Northern R. Co. v. Commissioner, 40 F. 2d 372; Davenshire, Inc., v. Commissioner, 12 T. C. 958.

      . Purdon’s Pa. Stat. Ann., 1953 (Supp. 1957), Tit. 75, §453.


author: By SKEEL, PJ.

text:
    CLEVELAND (City), Plaintiff-Appellee, v. RYAN, Defendant-Appellant.
    Ohio Appeals, Eighth District,- Cuyahoga County.
    No. 24339.
    Decided March 6, 1958.
    Bernard J. Conway, Edward V. Cain, Police Prosecutors, for plaintiffappellee.
    John C. Lyon, for defendant-appellant.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a decision and judgment of guilty in a criminal action in the Municipal Court of Cleveland. The defendant was charged with operating a trailer on Denison Avenue, a public thoroughfare, in the City of Cleveland, without bearing license plates as required by Sec. 9.3101 oí the Traffic Code of the City of Cleveland.

The defendant is an employee of Hayes Freight Lines, Inc., a foreign corporation of Illinois, engaged in interstate commerce, and holding authority to engage in such business from the Interstate Commerce Commission. Such employer maintains a freight terminal in Brooklyn, a suburb of Cleveland. At this terminal, The Hayes Freight Lines, Inc. has several tractors which are used exclusively in pick-up and delivery service, such tractors being lighter in construction that those customarily used in over-the-road service. These tractors, one of which the defendant was driving, are registered under the laws of Ohio and bear Ohio license plates. The Hayes Freight Lines, Inc. also have a number of trailers somewhat smaller than those used in over-the-road service which are used for local pick-up and delivery service in and out of the Brooklyn terminal serving the Cleveland area. These trailers are licensed by Hayes Freight Lines, Inc., in Illinois, the state of its domicile (Springfield, Illinois) and bear Illinois plates as provided by the law of that state. It was one of these trailers which the defendant was hauling, with one of the smaller tractors, bearing Ohio license plates, at the time of his arrest. The arrest was made because of the failure of the defendant to display Ohio license plates on the trailer.

The goods in the trailer being transported by the defendant at the time of his arrest were unquestionably being carried in interstate commerce. Such goods had come to and had been unloaded at the “Hayes” terminal from one or more interstate shipments and after being shuffled according to destination, these goods were then reloaded for delivery to Cleveland consignees in accordance with their original consignment in interstate commerce or were being taken to other freight terminals in the Cleveland area to continue by other routes or carriers on their journey in interstate commerce.

Some time in 1956, one Grady Alphabet, an employee of Hayes Freight Lines, Inc., was arrested under exactly the same circumstances as was true in this case and upon trial in the Municipal Court of Cleveland, was found not guilty.

The defendant alleges two errors:

1st: That the legality of the use of Illinois plates on a trailer under the identical circumstances as is presented by this record, having been found by the judgment of the Municipal Court of Cleveland in the Alphabet case not to be a violation of the law of this state under the reciprocal licensing requirements of the law of this state, the issue is now res judicata.

2nd: The exemption and reciprocal rights provided in §4503.36 R. C., operates to exempt vehicles owned by a resident of the State of Illinois and duly registered and licensed therein, from the licensing requirements of the State of Ohio, when such vehicles are operated by such Illinois resident exclusively in its pick-up and delivery service of interstate freight shipments.

The first of these contentions must be overruled. The principle of res judicata has no application to the criminal law. In a criminal case the sovereign is the party plaintiff and the purpose of the prosecution is to preserve the public peace or redress an injury to the public at large. The principle of stare decisis is not to be followed blindly, but may be disregarded in the interests of public security, particularly in criminal cases if justice requires it. State v. Mellenberger, 163 Or. 233, 95 P. 2d 709. Nor need there be consistency in judgments in criminal prosecutions. This is true even in the case of co-conspirators being tried for the identical crime as to parties separately prosecuted. Platt v. State, 143 Neb. 131, 8 N. W. 2d 849; State v. Kirsch, 101 Oh Ap 425, 131 N. E. 2d 419. This must be true of completely separate alleged criminal acts committed at different times by different defendants although the evidence tends to establish similar or identical facts with respect to the conduct of separate defendants acting separately to accomplish separate but identical purposes.

The second error claimed requires an interpretation of the motor vehicle licensing statutes of Illinois and Ohio and a determination of the manner in which the trailers of “Hayes” were used in its pick-up and delivery service at its Greater Cleveland terminal, particularly the one which this defendant was driving when arrested.

Sec. 4503.36 R. C., provides:

“The owner of every motor vehicle which is duly registered in any state, district, country, or sovereignty other than this state is exempt from the laws of this state pertaining to registration and licensing and the penal statutes relating thereto, provided the owner thereof has complied with the law in regard to motor vehicles in the state, district, country, or sovereignty of his residence and complies with such law while operating and driving such motor vehicle upon the public roads or highways of this state. Such exemption shall be operative only if the law of such other state, district, country, or sovereignty makes substantially like and equal exemptions to the owners of motor vehicles registered in this state.
“Reciprocal agreements between this and any other state, district, country, or sovereignty necessary in administering this section shall be made as provided in §4503.37 R. C.”

Chapter 95%, Sec. 22, Smith-Hurd Illinois Statutes, provides, in part:

“Except as is herein provided for foreign corporations, the provisions of Sections 8, 9. . ., 10, 14, 17 and 27 of this Act, shall not apply to any motor vehicle or motor bicycle owned by non-residents of this State if the owner thereof has complied with the law requiring the registration of motor vehicles or motor bicycles or the names of the owners thereof in force in the city, state, foreign country or province, territory or Federal district of his residence: and the registration number showing the initial or abbreviation of the name of such city, state, foreign country or province, territory or Federal district, is displayed on such vehicle substantially as is provided in Section 14 of this Act: Provided, that the provisions of this section shall be operative as to a motor vehicle or motor bicycle owned by a non-resident of this State only to the extent that under the laws of the city, state, foreign country or province, territory or Federal district of his residence, like exemptions and privileges are granted to motor vehicles or motor bicycles duly registered under the laws of and owned by residents of this State. If, under the laws of such city, state, foreign country or province, territory or Federal district, motor vehicles or motor bicycles owned by residents of this State, operating upon the highways of such city, state, foreign country or province, territory or Federal district, are required to pay the registration fee and carry the license plates or pay any other fee or tax to such city, state, foreign country or province, territory or Federal district, the motor vehicles or motor bicycles owned by such residents of such city, state, foreign country or province, territory or Federal district, and operating upon the highways of this State shall comply with the provisions of Sections 8, 9. . ., 10, 14, 17 and 27 of this Act. Foreign corporations, partnerships and individuals owning, maintaining or operating places of business in this State and using motor vehicles or motor bicycles in connection with such places of business, shall comply with the provisions of Sections 8, 9. . ., 10, Í4, 17 and 27 of this Act in so far as the motor vehicles and motor bicycles used in connection with such places of business are concerned.”

The Supreme Court of Ohio in Alger v. Bowers, Tax Comm., 166 Oh St 427, 143 N, E. 2d 835, has held that the Act (§4503.36 R. C.) regulating registration and licensing motor vehicles and providing for reciprocity in the use of vehicles licensed in other states coming into Ohio is self executing. In reading these statutes, it is plain that they deal with the privilege that owners of motor vehicles who have properly licensed their motor vehicles under the laws of one state to be exempt from the necessity of compliance with the motor vehicle registration laws of another state when such vehicles are temporarily or intermittently driven from the state where registered and over and upon the highways of such other state. The fact of the use of such vehicles in interstate commerce is not involved.

Under the evidence as shown by the record, the trailer this defendant was hauling when arrested was not only garaged at the Brooklyn terminal of his employer in Ohio but was used exclusively in the Cleveland area in its delivery and pick-up service. The law of Illinois, providing for the licensing of trailers, could have no application as to trailers used exclusively in Ohio. While the trailer the defendant was driving was owned by a corporation domiciled in Illinois, it was not used in Illinois and, therefore, was not subject to the motor vehicle registration provisions of Illinois law.

It is this fact that distinguishes this case from the case of City of Cleveland v. Szabo, 102 Oh Ap 288, 129 N. E. 2d 833. This court said in the second paragraph of the syllabus:

“Where goods are shipped from a consignor in Maryland to a consignee in Euclid, Ohio (a suburb of Cleveland), via such Pennsylvania motor carrier, and such goods remain in the same trailer for the entire trip, but the tractor-trailer carrier stops at such carrier’s terminal in Cleveland where the tractor is detached and another tractor, also owned by such Pennsylvania motor carrier and bearing Pennsylvania license plates registered in Pennsylvania, is attached, and where such change in tractors is a mere procedural requirement which in no way interrupts the unity of the movement of such shipment, and delivery is then completed to the consignee in Euclid, Ohio, the trip from such Cleveland terminal to the consignee is an operation in interstate commerce.”

It is clear from the facts in the above case that the trailer had just come into Ohio from Maryland via a route through Pennsylvania and there was no claim that the tractor was used exclusively in Ohio. In fact, it was used in service between Pittsburgh, Pennsylvania, and Cleveland and was, therefore, properly licensed in Pennsylvania.

The fact that the goods, being delivered by the defendant, were then in interstate commerce, and that defendant was then acting in furtherance of his employer’s purpose, with equipment furnished by his employer for that purpose, does not change the rule. Defendant’s employer cannot avoid the proper licensing of its motor vehicles. The legislation under consideration deals with motor vehicles, not merchandise, and where trailers are intended to be used exclusively in Ohio, the registration laws of Ohio must be complied with.

The judgment of the Municipal Court of Cleveland must, therefore, be affirmed.

KOVACHY and HURD, JJ, concur.


author: By MILLER, J.

text:
    COBB, Plaintiff-Appellee, v. COBB, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5729.
    Decided February 18, 1958.
    King & Gross, George W. Gross, of Counsel, Columbus, for plaintiffappellee.
    Henry A. Reinhard, Columbus, for defendant-appellant.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Common Pleas Court decreeing a divorce and alimony to the wife, Ruth P. Cobb, appellee herein, upon the grounds of gross neglect of duty and extreme cruelty.

The errors assigned are as follows:

(1) The decree and judgment of the trial court is contrary to the manifest weight of the evidence.

(2) The decree and judgment of the trial court is not sustained by sufficient evidence.

(3) The decree and judgment of the trial court is contrary to law.

(4) Abuse of discretion of the trial court preventing defendant-appellant from having a fair trial.

(5) Other errors of law occurring at the trial'.

(6) The amount of alimony and child support money ordered by the trial court is excessive.

We have examined the entire record and are of the opinion that the evidence produced on the trial of the cause was sufficient to sustain the court’s ruling finding the defendant-appellant guilty of the charges of gross neglect of duty and extreme cruelty. As is usual in cases of this type there was a conflict in the evidence on the gross neglect charge, but on the charge of extreme cruelty the defendant admitted facts which warranted the court’s conclusion on this question. The record reveals that the defendant accused the wife of infidelity, claiming that he was not the father of the child born to the plaintiff on July 7, 1956. On cross-examination the defendant admitted his paternity of the child and that the accusations were not well founded. In Eddy v. Eddy, 14 Abs 277, the court held it to be extreme cruelty for a husband untruthfully to accuse his wife of being immoral and unchaste. See also Green v. Green, 9 O. Dec. Repr. 564.

Counsel for the appellant laid much stress upon the fact that the plaintiff permitted a gentleman friend to spend the night in her home on two different occasions, after he had abandoned her. There was competent corroborated evidence in the record that on these occasions the guest occupied the bedroom of the fourteen year old daughter of these parties, and the daughter shared a sleeping room with the mother. Whether or not there was any misconduct on the part of the plaintiff upon these occasions was a factual question for the determination of the trial court. In the absence of a special finding of facts it must be presumed that the trial court found facts which supported the judgment; hence, he must have found no misconduct on the part of the wife. We are not the trier of the facts in this case, as the appeal is upon questions of law. Although we might have differed from the trial judge if we were permitted to do so, we are required to support the judgment if there is substantial evidence in the record supporting the factual conclusion upon which the judgment was based.

We are of the further opinion that the evidence supports the court’s finding that the defendant was also guilty of gross neglect of duty. However, a finding of guilt on either charge is sufficient to sustain the judgment.

We have examined the other errors assigned and find none to be well taken.

The judgment will be affirmed.

PETREE, PJ, BRYANT, J, concur.


author: By BRYANT, J.

text:
    COLUMBUS (City), Plaintiff-Appellee, v. HOLMES, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5878.
    Decided May 27, 1958.

      Russell Leach, City Atty., Bernard T. Chupka, City Pros., Columbus for plaintiff-appellee.
    L. P. Henderson, L. M. Gwynn, Columbus, for defendant-appellant.
   OPINION

By BRYANT, J.

This is an appeal in a criminal case. Julia Holmes, 504 South Grant Avenue, Columbus, Ohio was arrested on July 21, 1955. Upon a charge of disorderly conduct, she was found not guilty by the court sitting as jury. Upon the charge that she “did unlawfully, knowingly and willfully resist and obstruct in the execution of his office one J. Cameron then and there being an officer of said city, to-wit, a Police Officer on the Police force of said City of Columbus, by violently resisting, trying to break away from officer’s grasp .... That said Police Officer as aforesaid, at the time he was so resisted and obstructed as aforesaid, being then and there in the execution and discharge of his duty as such officer as aforesaid, which she, the said Julia Holmes then and there well knew, contrary to the ordinance * * she was found guilty.

' The court sentenced her to thirty days imprisonment in the Columbus Workhouse and fined her $25 and costs. The imprisonment was suspended upon condition of good behavior. Mrs. Holmes, defendant-appellant herein, appealed to the Common Pleas Court of Franklin County, which sustained the judgment of the Columbus Municipal Court, and she has appealed the latter decision to this court.

The notice of appeal filed in the Common Pleas Court states that “said appeal is on questions of law and on questions of law and fact.” In as much as no appeal on questions of law and fact is permissible in this type of case, the appeal will be considered as being on questions of law only. That apparently is the way the defendant-appellant has considered it for she has filed an assignment of ex’rors containing four alleged prejudicial errors claimed to have affected her substantial rights in this case.

The principal, if not the sole question, to be decided in this case is the legality of the arrest of defendant-appellant, Julia Holmes.

The trial court found that the defendant was not guilty of disorderly conduct from which it would seem to follow that the officer should not have arrested her. Said court then held that whether or not there was any ground whatsoever oxx which the officer acted in making the arrest, she had no right to object. At page 59 of the Bill of Exceptions the court stated:

“This charge of disorderly conduct does not stand up beyond a reasonable doubt, but the other mistake was in not obeying the officer, even if he was incorrect in making his arrest. That doesn’t affect the validity of the arrest. We’re talking about two entirely .separate and distinct things here. She did interfer (interfere); there can be no reasonable doubt in anybody’s mind.”

Mrs. Holmes at and prior to the time of the arrest in question was a music teacher, teaching piano and voice. She was also a seamstress and appears to have rented out rooms to tenants in the place where she resided with her family. One of the roomers for a period of about three months was H. H. Huff, a man who appears not to have been able to drive a car and who desired someone to act as his chauffeur. It was the claim of Mrs. Holmes that in consideration of her services as driver and making available transportation service whenever' desired, that the said Huff gave her an automobile. It appears not to be in dispute that she had full possession and control of the car, that she was possessed of the keys, that the certificate of title was in her possession and that in all respects for an indefinite period of time she exercised all the rights of an owner of the said vehicle.

Huff did not testify and his part in this transaction can only be learned by what others testified. It would appear that he had changed his mind about the bargain, had moved out of Mrs. Holmes’ place and wanted his car back. It also appears that Mrs. Holmes told him he couldn’t have it back.

At this point in the proceeding it would appear that there might well have been the basis for an action in replevin in favor of Huff. Sec. 2737.01 R. C., dealing with this subject, provides as follows:

“The possession of specific personal property may be recovered in an action as provided in §§2737.01 to 2737.24, inclusive, R. C.”

This is because of the provisions of §4505.04 R. C., which states simply that the title to a motor vehicle does not pass until a certificate of title is issued to the one claiming to be the new owner. As it subsequently developed the title was still in the name of Mr. Huff although Mrs. Holmes claimed that he had given the certificate of title to her and promised to take all steps necessary to have a new title issued in her name.

Huff appears to have called the office of the inspector of the Columbus Police Department and to have given information that a police officer was neded at 504 South Grant Avenue, the home of Julia Holmes, and an officer, John Cameron, was dispatched to the place as he stated (Bill of Exceptions, p. 3, Q. 8):

•“* * * to settle a complaint that had been lodged through the inspector’s office.”

Cameron was accompanied by an acquaintance of his, Robert C. Crane, a firefighter for the City of Columbus, who went along to assist, if needed.

All parties to the transaction appear to agree that at the time the police officer arrived at 504 South Grant Avenue, peace and tranquility reigned everywhere. Mrs. Holmes was inside her home with the door closed sewing some clothing for her son. The officer rapped on the door and asked if she had called for the police and she replied in the negative.

At this point, Huff, who had been some distance down the street, appeared and told the officer he had called the police and that Mrs. Holmes had property belonging to him. Mrs. Holmes denied this and stated the circumstances and considerations under which she came into possession of the car as a gift from Huff evidenced by the fact that not only was the car given to her custody but also the keys and all of the papers including the certificate of title.

Mrs. Holmes said that because of the presence of an officer in uniform she invited him in and exhibited to him the certificate of title, which was still in the name of Huff.

As stated before, Huff might well have resorted to replevin because of the provision of the certificate of title law above referred to. However, even the provisions of said §4505.04 R. C., are not absolute in all cases as recognized by the Supreme Court of Ohio in holding that evidence establishing fraud is admissible where it would have the effect to cause such certificate to be voidable. See In re Estate of Case: Butler v. Case, Admr., et al., 161 Oh St 288, the second branch of the syllabus is as follows:

“Sec. 6290-4 GC (§4505.04 R. C.), makes evidence inadmissible to dispute the title of one to whom a motor vehicle certificate of title is issued pursuant to the provisions of the Ohio Certificate of Title Act except evidence to establish fraud which would cause such certificate of title to be voidable.” (Emphasis added.)

See also Ohio Casualty Ins. Co. v. Guterman, 97 Oh St 237, decided by the Court of Appeals of Montgomery County, Ohio in which the syllabus is as follows:

“The holder of a valid certificate of title to an automobile issued in another state may maintain an action in replevin in Ohio against a subsequent purchaser who holds an Ohio certificate of title which is derived through a person who stole the automobile from the rightful owner.”

See also In re Robert E. Lee, Inc., Bankrupt, 57 O. O. 304.

It would appear that the police officer was not inside the house very long, Crane, the firefighter, estimating the time at “two or three minutes.” During that time, the officer decided then and there that Mrs. Holmes had no right or title to the car, no right to possess or use it and that she must immediately surrender the ear, the title and the keys to Huff, that she had no right to appeal to anyone and that unless there was instantaneous and complete compliance with this order and mandate of the officer, she would be guilty of disorderly conduct and would be immediately arrested and taken to the City Jail.

As before stated the trial court appears to have found that this was entirely proper and in accordance with law and that Mrs. Holmes was completely in the wrong in attempting to defend the property she claimed, as belonging to her, and that under the circumstances the correctness or incorrectness of the arrest made no difference.

Apparently the Common Pleas Court agreed with the Municipal Court for at the end of his decision there appears this statement:

“It is unfortunate that the situation got out of hand. The defendant, however, had no right to resist the officer in discharging what he honestly felt was his official duty.”

From what has been said above it would appear that only good faith is required of an officer and no matter how grievous his error may be or how completely unauthorized his act, the citizen has no right to defend his property but must meekly comply. We do not conceive that to be the law applicable to this case.

In the Code of Criminal Procedure (§2935.01 et seq, R. C.) an entire chapter (Chapter 2935 R. C.), is devoted to “detection and arrest.” From the language of the sections in that chapter may be learned the precise powers granted to peace officers charged with the duty of enforcing penal laws and ordinances. Important here is the distinction between felonies and misdemeanors as set forth in §1.06 R. C., which reads as follows:

“Offenses which may be punished by death or by imprisonment in the penitentiary are felonies: all other offenses are misdemeanors. As used in the Revised Code ‘minor offense’ is synonymous with misdemeanor.”

Also important is the distinction between violations of law or ordinances taking place in the presence of a peace officer and those which do not take place in his presence.

By express provision of statutes, peace officers generally are authorized to arrest and detain persons violating a law or ordinance in the presence of the officer without first filing an affidavit and obtaining a warrant to arrest and this applies equally to misdemeanors or felonies taking place in the presence of the said officer. Sec. 2935.03 R. C., provides in part as follows:

“A sheriff, deputy sheriff, marshal, deputy marshal, watchman, or police officer shall arrest and detain a person found violating a law of this state, or an ordinance of a municipal corporation, until a warrant can be obtained.” (Emphasis added.)

We are not here concerned with a felony. Both of the charges filed by the officer were ordinance violations and, hence, misdemeanors. We note in passing, however, that where a felony has been committed or there is a reasonable ground to believe that a felony has been committed, peace officers and private citizens alike, without a warrant, may arrest a person where there is reasonable cause to believe he is guilty of the offense.

No affidavit had been filed and no warrant to arrest had been issued at the time Mrs. Holmes was arrested. It is, of course, apparent that whatever commotion occurred, took place after the officer attempted forcibly to transfer possession of the certificate of title, the car keys and the car itself from Mrs. Holmes to Mr. Huff. It is not disputed in the record that these articles of personal property came voluntarily into the possession of Mrs. Holmes apparently by the act of Mr. Huff.

It may well be that Huff would have prevailed in an action in replevin, but we have been unable to find any authority given by law to the officer in this case to settle a private dispute over the right to possession of personal property as was done here and it follows that the threat to arrest for failure to comply was without legal foundation.

The question remains whether Mrs. Holmes was entitled to refuse to comply and to resist attempts forcibly to make her comply under these circumstances. We hold that she was.

In 6 Corpus Juris Secundum 588, Section 6, Arrest, the rules relating to arrests for misdemeanors not occurring in the presence of the arresting officer are discussed and it is stated generally that only in felony cases may such arrests be made without a warrant. This authority states the rule as follows:

“In any case, however, in order that an officer may be justified in making an arrest without a warrant for an offense not committed in his presence, but merely on suspicion of a crime committed, the crime must be at least technically a felony, either by common-law or by statute, and the officer making the arrest must have reasonable grounds for believing that the person arrested committed it.”

It would thus appear that §4505.04 et seq, R. C., being a part of the Ohio Code of Criminal Procedure, incorporates into Ohio law the general rule throughout the Country. The same authority further states that a mere suspicion or belief that a misdemeanor has been committed will not authorize an arrest without a warrant. At page 594 of the said text it is stated:

“It is the general rule, subject to statutory variations, that a misdemeanor must have been actually committed to justify an arrest without a warrant, and the mere belief or suspicion that a misdemeanor is being, or has been, committed is insufficient to warrant an arrest without a warrant: nor may an arrest without a warrant be made on a belief, founded on information received from a third person, that a misdemeanor is being committed.”

In 5 O. Jur. (2d) 33 and 34, Section 21, Arrest, it is stated:

“No person except an officer has a right to make an arrest for a misdemeanor without a warrant. An officer can arrest a person for the commission of a misdemeanor or violation of a city ordinance without a warrant only if he sees the person commit the misdemeanor or violate the ordinance. Thus an arrest without a warrant, after the completion of a minor offense not committed in the presence of the officer, is illegal. If an officer is absent when a misdemeanor is committed, and all the information he has of the offense is from statements of bystanders who witnessed it, he has no authority to pursue and arrest the person charged with the offense, without first obtaining a warrant.” (Emphasis added.)

We think it is clear, therefore, that there was no misdemeanor committed in the presence of the officer and there being no warrant, there was no authority to make the arrest.

What of the resistance to the arrest? The authorities are in agreement that since the right of personal property is one of the fundamental rights guaranteed by the Constitution, any unlawful interference with it may be resisted and every person has a right to resist an unlawful arrest. In 5 O. Jur. (2d) 61, Section 52, Arrest, it is stated:

“Since the right of personal property is one of the fundamental rights guaranteed to every citizen, and any unlawful interference with it may he resisted, every person has a right to resist an unlawful arrest; and, in preventing such illegal restraint of his liberty, he may use such force as may be necessary.” (Emphasis added.)

This appears also to be the general rule throughout the United States. In 4 Am. Jur. 63, Section 92, Arrest, there appears the following statement:

“The right of personal liberty is one of the fundamental rights guaranteed to every citizen, and any unlawful interference with it may be resisted. Every person has a right to resist an unlawful arrest; and, in preventing such illegal restraint of his liberty, he may use such force as may be necessary.” (Emphasis added.)

It is quite clear that Mrs. Holmes, believing she was right, attempted to protect what she claimed was her property from the summary disposition and transfer attempted by the officer in this case. Mrs. Holmes claimed the officer used foul names with reference to her (Record, p. 48) and the officer admitted referring to her as “a bitch.” At page six óf the record the officer, on cross-examination, gave this testimony:

“Q12. Officer, what did you say you said? Help me do what? A. I said to the fireman who was standing there trying to help me — I handed him my handcuffs, and I says, Put the cuffs on this bitch.” ,

Mrs. Holmes told of going outside her house and entering the automobile in question to obtain her personal belongings in the glove compartment. She testified she was ordered to get out of the car by the officer and that she complied, but was told she was under arrest. Her description of the scuffle follows (Record, P. 48):

“He said, March yourself over there and get in my car. So I walks over to the car. And just as I go to go in, he jumps on my back and bends me over. Well, the onliest way I could do, I did strugle around his leg because he almost had my breath. I couldn’t say anything. I struggled around his leg and tried to hold myself up. Finally I felt this cement on the corner, and I held that as long as I could. And then he said, Put handcuffs on this — you know, called me a foul name. So after he did that, I kind of made a quick little jerks to get his hand out from under my neck. And when I did that, I made a step to go to the house. When I did that, he grabbed me by this leg and he tripped me over on the cement steps at the door, and then he dragged me and turned me all over. And I kept trying to go in the house, and I was going to call'for help. I said, I’m going to call for help myself. I couldn’t do anything. He wouldn’t let me do nothing hisself. So the people had yelled around there — the neighbors, and beings they was rooming there with me, they pleaded with him to turn me loose. They said, You have no business manhandling a lady like that. They said, She wasn’t bothering you. They said, She was sitting here tending to her -business. You don’t have any affidavit to arrest her.”

On behalf of defendant-appellant, the errors claimed are that the judgment is against the manifest weight of the evidence, is not sustained or supported by the evidence, is contrary to law and contrary to the law and evidence.

In our opinion, for the reasons above set forth, the judgments of the Court of Common Pleas of Franklin County and the Columbus Municipal Court contain errors prejudicial to the defendant-appellant and are against and not sustained by the manifest weight of the evidence and are contrary to law and will, therefore, be reversed and set aside and the case is remanded to the Municipal Court for further proceedings in accordance with law.

PETREE, PJ, MILLER, J, concur.


author: By GRAM, J.

text:
    HOUGH, Estate of, In re.
    Probate Court, Clark County.
    Decided March 6, 1958.
   OPINION

By GRAM, J.

An application for refunder of inheritance tax upon succession passing to Mrs. Georgia Chapman under the will of Bert Hough was filed in the Probate Court of Clark County on March 27, 1957, and reads as follows:

“Now come Dorothy E. DeWitt and John R. Chapman, Executors of the estate of Georgia E. Chapman, deceased, and respectfully represent to the Court that the said Georgia E. Chapman died testate a resident of Springfield Township, Clark County, Ohio on or about April 22, 1957; that by and under the terms of the Last Will and Testament of Bert Hough, deceased, heretofore in 1952 admitted to probate and record in this Court, certain real estate of the appraised value of $29000.00 was devised to the said Georgia E. Chapman (she being named in said Will as Mrs. Georgia Chapman) for and during her natural lifetime.
“That such devise was a taxable succession from the said Bert Hough, deceased, to the said Georgia E. Chapman, and proceedings were heretofore had for the determination, assessment and payment of the tax accrued on account thereof and on September 16, 1952, said tax was paid by the said Georgia E. Chapman.
“That in the determination of said tax the life expectancy of the said Georgia E. Chapman was considered as approximately 10 years. The date of the death of said Bert Hough was May 21, 1952. The said Georgia E. Chapman having died on April 22, 1957, the actual duration of the estate enjoyed by her was four years and eleven months.
“Wherefore, said Exeeutors pray that a refund of such tax be made to them in such amount that will reduce said tax to the amount which would have been assessed on account of the actual duration or extent of the estate enjoyed by the said Georgia E. Chapman.”

The foregoing application was signed and sworn to by Dorothy E. DeWitt and John R. Chapman as executors and beneficiaries under the will of Georgia Chapman, deceased. It should be noted that the amount of the inheritance tax paid by said Georgia Chapman on September 16, 1952 was in the total amount of $1,039.61. It is therefore the prayer of the Executors of the estate of Georgia Chapman that whatever amount over and above the amount that was due for 4 years and 11 months would be the amount for which the refunder is now requested.

A hearing was had in the Probate Court on July 18, 1957, with the Attorney General of the State of Ohio and one of his assistants, Gerald A. Donahue, representing the Department of Taxation of Ohio and George C. Collins as attorney for the executors of the estate of Georgia Chapman.

Brief was filed by Mr. Donahue on behalf of the Department' of Taxation on September 14, 1957. In their Brief, counsel suggested that the issue before the Probate Court was

“Where the Probate Court fixes the value of a life estate and remainder based on the actuarial value on the date of death may it subsequently adjust the values based on the actual duration of the life estate and order a refund?”

It was pointed out by counsel that the pertinent provisions of the inheritance tax chapter directly effecting the said issue, are §§5731.23, 5731.24 and 5731.27 R. C.; that §5731.23 R. C., establishes the method to be used in valuing life estates for purposes of inheritance tax, and that most states having inheritance tax laws have enacted identical or similar statutes, citing American Law of Property, Vol. I, Section 2.25, p. 166; that the language of the section is mandatory is provided in the following language:

“The value of a * * * limited estate * * * shall be determined by the rule, method and standard of mortality and value employed by the superintendent of insurance.”

It is further claimed that no exceptions or limitations are provided to the language and thus the table is made exclusive evidence of value; that its purpose is to create finality in fixing the value of a limited estate passing for inheritance tax purposes on the date of death to avoid suspended or postponed assessments where no possibility of divesting is present other than the termination of a specified period of time or for a life or lives in being. In supporting the foregoing statement counsel cite “Restatement, Property (1936), Section 133, comment in which the following statement was made:

“the annuity tables employed are calculated on the particular experience table of mortality employed in the state wherein the land is located and on the rate of interest utilized in that state for the calculation of the present value of an estate for life. Other evidence as to the ancestry, health, or habits of the parties is inadmissible. The rule works a hardship in an occasional situation. The reverse position would introduce a complex issue, on which little but expert medical evidence could be used, in a large number of cases. A substantial balance of convenience favors the stated rule.”

Counsel also points out that mandatory language is also employed in §5731.24 R. C., fixing the value of remainders and for the same reasons.

It is claimed that if life estates and remainders absolutely vested in nature were to be computed based on actual duration then it would be unnecessary to enact such legislation; that the temporary provisions provided for in §5731.28 R. C., could be utilized and the tax determined temporarily at the highest rate pending the termination of the life estate; that this procedure was devised to allow immediate taxation so that contingencies or conditions of divestment would not imperil collection of the tax, citing Matter of Parker, 226 N. Y., 26; Tax Commission v. Oswald, 109 Oh St 36; Wonderly v. Tax Commission, 112 Oh St 233.

Counsel also directs our attention to the fact that in 1921 the Attorney General ruled that life estates were to be computed upon the actuarial or theoretical value, regardless of the life tenant’s death prior to the determination of inheritance tax on his interest, in an opinion of 1921, No. 1786, page 12; that if actual duration were considered a factor then obviously the Attorney General would have been justified in ascribing no value to the life estate; that this opinion subsequently lead to the passage of §5731.27 R. C., which now allows a life tenant’s interest to be computed on actual duration but only if the tax on the life interest has not been computed prior to its termination, and that no further exception was provided for.

Referring to similar issues that have arisen in other jurisdictions counsel cited the case of Ithaca Trust Co. v. United States, 73 L. Ed. .947, 279 U. S., 151, the headnote of which provides:

“The value of charitable gifts from a remainder after a widow’s life estate, for deduction from the gross estate in fixing the estate tax, is to be détermined by the probable duration of the widow’s life estate at the time of the testator’s death as shown by the mortality tables; not by the fact that she dies within a short time after the trust goes into effect.”

In that case it was pointed out that the court based its approach on the fact that the liability for taxes was fixed as of the date of death; that the approach for Ohio inheritance tax is identical, suggesting that the accrual date of the tax is the date of death, and citing the cases of Village of Belle Center v. Board of Trustees of Roundhead, 99 Oh St 50; McDonald v. Evatt, 145 Oh St 457; In re Saviers, 23 Abs 166. Citing the New York case of In re Frauenthals Estate, 256 N. Y. S., 834, the second and third headnotes provide:

“2. Value of life tenant’s interest in property passing under deed of trust held taxable, notwithstanding she survivied decedent by only 24 days;
“3. Statute requiring valuation of life estate for transfer tax purposes to be determined by the use of standard mortality tables held mandatory on appraiser and surrogate.”

Then counsel calls attention to a number of New York. Massachusetts, Connecticut, and Pennsylvania cases which are identical more or less to the statutes presently in effect in Ohio, counsel pointing out that these authorities establish the proposition that life estates are to be fixed at a theoretical value for purposes of inheritance tax as of the date of death without regard to subsequent events affecting duration; that a contrary view would interject an element of uncertainty into all proceedings where a life estate and remainder were created and for practical purposes nullify the effectiveness of statutes providing an actuarial basis for computing values; that indeed it would be doubtful in most cases that actual duration of the particular life estate will correspond to the theoretical life expectancy set up by mortality tables, and that actuarial tables are devised to eliminate uncertainty and to provide a fair norm for calculating interests based on probabilities of life and death.

Counsel stresses the fact that the general refund provision §5731.20 R. C., does not provide a basis for refunder; that no additional debt has been assessed against the general estate, no similar tax has been ' assessed in a foreign state or country and the original order has not been modified or reversed as the result of exceptions or appeal.

Anticipating a possible claim that a refund might be granted in this matter by an application of the Court’s general equity powers counsel for the tax commission of Ohio stress the fact that in this instance there was no mistake of fact in connection with the determination of the tax; that the proper factual situation existing on the date of death was before the court, and that any uncertainty of the probability of life, a fact which is always uncertain, is compensated for by the use of mortality tables; that the effect of the events subsequent to the date of death, no matter how detrimental, are of no consequence since the tax accrues as of the date of death.

In conclusion counsel for the tax commission of Ohio urged that the original determination of tax is not subject to modification and that this has been the unquestioned administrative construction and practice since the enactment of the present direct inheritance tax law in 1919 and they cite the case of In re Friedman, 154 Oh St 1, at page 10. Counsel also states that the tax in this case was properly determined in accord with the facts existing on the date of the death of the decedent herein; that the proceeding injects the elements of certainty and finality with respect to the determination of tax liability; that it could not request a redetermination if the facts were reversed, and that if such practice were invoked estates might have to be held pending for years because of the possibility of an increase in tax liability for which a fiduciary could be held liable; that the method of valuation is fair, based on long established actuarial factors promulgated primarily for use in the life insurance field.

Brief on behalf of the executor of the estate of Georgia E. Chapman, deceased, was filed in the Probate Court on December 9, 1957. Counsel disagrees with the statement as to the issue in the case made by the Tax Commission and states that it is the opinion of the executors that where the Probate Court has determined the value of a life estate upon the actuarial basis provided in §5731.23 R. C., and the inheritance tax has been determined and paid, and the life tenant thereafter dies within the period of time considered on such actuarial basis to be her life expectancy, that the Court may subsequently order a refund to be made of so much of such tax as well reduce the same to the amount which would have been assessed on account of the actual duration or extent of the estate enjoyed. Counsel for the executors cite in full §5731.23 R. C., and states that the applicants for the refund claim that their rights to such refund may be found within the provisions of that Section, and the procedure to obtain it is found within §5731.20 R. C., to which §5731.23 R. C., refers. Counsel points out that the first part of §5731.23 R. C., deals only with the manner in which a life estate shall be valued; that Georgia Chapman’s life estate was valued in that manner, the basis of the valuation being an “Actuarial” or “theoretical” life expectancy for her of ten years. He then urges that the second paragraph of §5731.23 R. C., provides for a refund of so much of the tax as will reduce the same to the amount which would have been assessed on account of the actual duration or extent of the estate enjoyed. Counsel urges further that while the death of Georgia Chapman was certain to occur at some time in the future, that the possibility of her dying within the ten year period, which was the basis of the value of her life estate, was a contingency, — it was liable to occur, but not certain to occur within that period. And when her death did occur on April 22, 1957, her interest in the estate was certainly abridged, defeated and diminished and her enjoyment thereof was cut from a theoretical ten years to an actual four years and eleven months, and that counsel therefore believes that the real question in this case arises under the second paragraph of §5731.23 R. C., which provides for the tax refund and which reads as follows:

“ — or in the event of the abridgment, defeat, or diminution of such estate, or interest therein, a refund shall be made in the manner provided by §5731.20- R. C., to the person properly entitled thereto, of a proportionate amount of such tax on account of the encumbrance taking effect, or so much as will reduce the same to the amount which would have been assessed on account of the actual duration or extent of the estate enjoyed.”

Counsel then calls to the attention of the court the case of Wonderly v. Tax Commission, 112 Oh St 233 and the fact that mention is made as to tax refunds by Judge Day and he quotes from that decision as follows:

“The frank purpose of the inheritance tax law seems to be to secure to the State the highest rate of taxation that any given succession is justly susceptible of in the legislative mind and to secure the same to the State at the earliest moment, subject to such refunders as the Legislature has seen fit to allow. If its provisions seem harsh, the place to seek the remedy is in the Legislature and not in the Courts. Judicial interpretation must be based on legislative enactment, as the same is found in the statute books.”

In the Wonderly case an estate was left by Francis D. Kingseed and having no widow surviving him and one son age of 11 years his will provided that all of his estate should pass to his eleven year old son, Wilbur Francis Kingseed, his heirs and assigns forever. In Item six testator provided further that if his son Wilbur should die before arriving at the age of 25 years without leaving heirs of his body then and in that event he gave, devised and bequeathed all that part of his estate to several named sisters and brother, and consequently the inheritance tax was assessed at the highest possible value because of the contingencies raised by the language of decedent’s will. In the case before us, no such contingency existed as existed in the Wonderly case. The tax in this case was assessed against the life tenant as of the date of death of Bert Hough and there was no such contingency resulting in an abridgement, defeat or diminution of the estate passing to Georgia E. Chapman.

Counsel then cites two Ohio cases namely, Tax Commission v. Lamprecht, 107 Oh St 535, and Cassidy v. Ellerhorst, 110 Oh St 535 in which Chief Justice Marshall called attention to many deficiencies, ambiguities and uncertainties in the inheritance tax laws of Ohio. In the Case of Cassidy against Ellerhorst the then Chief Justice Marshall used the following language in the Opinion:

“In approaching the interpretation of statutes imposing taxes, it should be recognized at the outset that the rule of strict construction should be followed, and that, where there is ambiguity or doubt as to legislative intent, the doubt should be resolved in favor of the person upon whom the burden of taxation is sought to be imposed, and that language employed in a taxation statute should not be extended by implication beyond its clear import, or to enlarge its operation so as to embrace subjects, of taxation not specifically named.”

In conclusion counsel for the Executors of the estate of Georgia Chapman urges that there is such ambiguity or doubt as to the legislative intent in the statutes involved in this instant case, to-wit: §§5731.20 and §5731.23 R. C., that such doubt should be resolved in favor of these applicants by granting them a refund of the amount heretofore suggested.

Sec. 2131.01 R. C., reads as follows:

“The American experience table of mortality is the basis of determining present values in probate matters.”

Prior to the enactment of §2131.01 R. C., both the American and Car-lisle tables had been used in the State of Ohio. They had been used in ascertaining the present value of consummate or inchoate dower in real estate or of an annuity, payable either at a stated annual period or at some future date, have been used in fixing the measure of damages in an action brought for wrongful death of an individual, in the figuring of dower, and in partition actions. In substantially the form as quoted above, §2131.01 R. C., has been the law of Ohio since the Probate Code went into effect on January 1, 1932. Since that time, the American experience tables have been used in determining the taxable succession of a life estate and said tax has been assessed by a final order of the Court. The remainder interest was also taxed by final order and five percent was used in arriving at the determination. The only exception to this rule applied in a case where the life tenant dies before the inheritance tax is determined. In this event the actual time the tenant lives is the time used to determine the amount of the succession and no regard is given to the mortality table.

It has been impossible to find any case law authorizing a redetermination of tax and a refunder in a situation where the life tenant did not live out the life expectancy as previously determined. It might also be noted that no additional tax could be levied in the event that the life tenant lives beyond that life expectancy as determined by the American tables. It would seem to the Court that owing to the fact that there are no reported cases that this law for determining life expectancy in the passing of the succession of real estate under the American tables has been accepted generally in the State of Ohio all these years.

An interesting discussion of this whole matter is to be found in a publication entitled, “A Treatise on the Laws on Estate and Inheritance Taxation ” by Cassidy and Dargusch. At page 79 of said book the following statement is made:

“The value for inheritance tax purposes of dower interests, life estates and annuities, etc., is to be determined according to the provisions of §5342 GC (now §5731.23 R. C.). Under that section the rate of interest is fixed at five per cent.”

Also on page 80 is the following:

“Under §5343.4 GC. (present §5731.27 R. C.), where a life tenant or annuitant dies prior to the determination of inheritance tax, the actual amount paid or payable to such life tenant or annuitant is the amount to be taxed. Formerly a life estate or annuity was valued for inheritance taxation in every instance at its theoretical value. Thus where a life tenant who had an expectancy of twenty years died shortly after the testator, it was held by the Ohio Attorney General that the value of the life estate was to be determined on its theoretical basis and not the actual duration.”

Also quoting further from page 80:

“A life estate or annuity which may be divested by an act or omission of the life tenant or annuitant is to be appraised under §5344 GC (present §5731.31 R. C.), for inheritance tax purposes as though no possibility of divesting exists. Applying §5344 GC, the Ohio Attorney General held that where a testator’s will gave his widow a life estate with power to consume the principal, remainder to decedent’s children, but with a provision that if the widow sold she should have only her dower and distributive share, a life estate should be charged to the widow under §5344 GC, with a subsequent readjustment if divested.” ,

The Court is of the opinion that that portion of the second paragraph of §5731.23 R. C., beginning with the words: “ — or in the event of the abridgment, defeat, or diminution of such estate, etc,” does not support the arguments of counsel that there is such ambiguity or doubt as to the legislative intent in §§5731.20 and 5731.23 R. C., as would warrant the Court in saying that such doubt should be resolved in favor of the applicants for this refund. We believe that the whole statute has to be read together and that there was no such abridgment, defeat or diminution of Georgia Chapman’s estate, either at the time the value of her succession was determined under the American actuarial tables or since that event which would entitle her estate to a refunder under the provisions of §§5731.20 and 5731.23 E. C.

We believe further if there is anything wrong or unjust in the settlement of estates in which these statutes are involved, correction should be made thru legislative enactment.

It is therefore the opinion of the Court and he holds that no refund of any portion of the tax paid by the decedent should be refunded to the executors of her estate.