author: Price, J.

text:
    Davies, Jr., Auditor, et al. v. The National Land and Investment Company. Davies, Jr., Auditor, et al. v. Mitchell.

      Completion of decennial appraisement — Municipal board of review — ■ Cannot increase taxable value of property, when — Section 2819-1, Revised Statutes — Complaint of clerk of board not sufficient, when.

      1. After the completion of the decennial appraisement of real estate in any municipality of this state, and its equalization in accordance with the statutes in force for that purpose, it is not competent for the board of review of any such municipality, created and acting under the provisions of Section 2819-1, Revised Statutes (95 O. L., 481), during the running of the decennial period, to select certain tracts or lots therein for revaluation and to increase their taxable value above that fixed by the preceding decennial valuation, unless such increase in value is caused by the erection of new structures not returned, of unless such increase becomes necessary in equalizing such real estate on account of omitted lands or lots restored to the tax list, new entries and additions, or, in correcting gross inequalities in existing valuations, requiring a new equalization of the property so increased with other real property affected thereby. And such increase and equalization cannot be made, except upon complaint of an owner or owners of real estate interested therein, and after due notice of the time and place of hearing of said complaint, to persons whose real estate may be affected by such increase and equalization. ,
    A complaint filed by the clerk of such board of review, even if filed under its order, is not the complaint contemplated by said Section 2819-1. It must be the complaint of an owner of real estate interested in a new equalization.
    (No. 10408
    Decided June 4, 1907.)
    (No. 10409
    Decided June 4, 1907.)
    Error to the Circuit Court of Lucas County.
    On the first day of February, 1906, the defendant in error filed in the court of common pleas of Lucas county a petition against the said David T. Davies, Jr., as auditor, and Peter Parker as. treasurer of that county, and also made James M. Brown, W. H. H. Smith and Wm. E. Malone, as members of the board of review pf the city of Toledo, defendants.
    • The plaintiff in that action, now defendant in error, alleged its ownership of certain real estate in the city of Toledo, situate in the well improved and valuable part of the city, which, at the decennial appraisement of 1900, by the action of the decennial district appraisers, the decennial board of equalization and revision, and the state board of equalization, was valued at $16,380 as its tax value for the decade of 1900 to 1910, at which valuation it was placed on the tax duplicates and so remained until the year 1905. This property, the petition says, with all the other ■ real estate in Lucas county, in the year 19001, was duly appraised at the decennial appraisement for that year, and the same was, with other real estate in the county duly equalized by the proper boards selected for that purpose, and that thereafter said appraisals of the county were equalized with similar appraisals from all the counties of Ohio, by the state board of equalization. In said state equalization, the state board found that the appraisal of real property in the city of Toledo was five per cent, too high, and ordered a reduction of that per cent., which reduction was made by the auditor of Lucas coufity on its grand duplicate as the amount of valuation for the decennial period to 1910 — which valuation as to plaintiff’s property was $16,380. The auditor of the county gave the required notice of the reduction so made and of the time and place of meeting of the boards of revision of the county and city. No changes were made by them as to plaintiff’s property, and said last valuation became fixed and so remained on the duplicate until the close of the tax year of 1904, and that except as to new structures erected, or structures destroyed, said last valuation of the other real property, in the county also remained the same to the close of the tax year of 1904. •
    Since the decennial appraisement of 1900, no new structure has been erected on the property of the plaintiff, and there has been no increase in the value of its property since 1900, except as in common with the other real estate m Toledo, the real property of the county .outside the city and other real property in the state of Ohio.
    It is also alleged, that the defendants who compose the board of review, arid acting as such board, during the year 1905, selected twelve blocks of lots in the city of Toledo, of which plaintiff’s property is a part, and publicly proclaimed that they would proceed to make a new appraisal thereof for' the purpose of fixing a valuation for taxation upon the duplicates for that - year. The boundaries of these blocks are given in the petition. It is then averred that no complaint had. been filed with said board or with the county auditor by any taxpayer that any error existed in said decennial valuation which required a special equalization as between plaintiff’s property and other real property in said city or courity, and that in order to have a “complaint” the clerk of the board of revision was ordered to file complaints concerning the tax valuation of the lots composing said twelve blocks, which complaints so made by the clerk were the only complaints filed with the board.
    The board of review then notified the lot owners of a time and place of hearing, when “said board would consider and act upon a petition to review for taxation and to revalue and equalize the valuation of real estate which is described on the tax duplicates of the current year,” et cetera. .
    At the hearing, testimony was heard concerning the then value of said lots respectively, but no testimony was taken as to the value of the lots at the time of the last decennial appraisement, or as to the relative value as between such parcels respectively as "of the date of said decennial appraisement, or of the value of any of the realty in said twelve blocks in relation to the value of the other realty in the city of Toledo. As a result of the hearing the board added to the decennial valuation of plaintiffs property the sum of $8,430 which it certified to the auditor to be placed on the duplicate, which was done by the auditor and the duplicate so increased was delivered to the treasurer for collection.
    It is further alleged that substantially all lands outside of and adjacent to the city of Toledo, since said decennial appraisement, have increased in value in proportion to the value fixed by the decennial appraisers, in a greater ratio than the increase in value of said twelve blocks, or any part thereof, and that all lands surrounding the larger cities of the state have also increased in value in substantially a like ratio since said decennial appraisal, and that no general re-appraisal of said real estate .outside the municipalities has been made or attempted to be made, and that the time to hear complaints and correct' errors in said decennial appraisement has gone by, whether they were errors of omission of properties, or because of gross over or under valuation. It is also complained of, that if all the realty in the state had been re-appraised for taxation for the year 1905 according to the same rule of valuation applied by' the board to plaintiff’s property and the remainder of the twelve blocks, a rate of taxation for 1905 substantially1 lower than the rate which has been imposed on the property in the state would have produced an adequate and equal revenue for all the purposes of taxation, and would have charged plaintiff’s property with a payment of no larger sum than was charged for the year 1904.
    It is charged that since said board re-appraised the twelve. blocks and charged them with the additional burden, it revalued another nearby block and found it to be below real value in the sum of $123,410, but that the latter block still stands on the duplicate at the decennial valuation, except as to new structures; and that the levies for state, county and municipal taxes for the year 1905 were made upon the grand total of the duplicates of 1904, and that there was no public necessity for said revaluation. The petition proceeds to state grounds for holding the act providing for the boards of review unconstitutional, because of want of uniformity in rules of taxation; and that all the acts of the board complained of are in violation of plaintiff’s rights as guaranteed by section 26 of article II, and section 2 of article XII, of the constitution of Ohio, as well as by the constitution of the United States.

      ■ The plaintiff tendered the treasurer, Parker, .the first half of the tajees due in 1905, less the taxes on the increase of valuation, which tender was refused, and the treasurer threatened to place the property on the delinquent list and thereby cast a cloüd upon plaintiffs title. The prayer is for an order of abatement of taxes. charged upon the new valuation; and an injunction against in any way subjecting its property to the increased taxation. The foregoing is the substance of the allegations of fact made in the petition.
    The auditor and treasurer demurred generally to the petition. The board also filed a general demurrer. The court of common pleas sustained these demurrers. On appeal the circuit court overruled the demurrers and granted the injunction prayed for in the petition. The case is here on error to reverse the judgments of the circuit court.

      Mr. Wade H. Ellis, attorney-general, and Mr. S. W. Bennett, for plaintiffs in error.
    Has the board -of review. power to add to or take from the decennial valuations of the real estate within a city when such values have substantially changed between decennial periods and in cases other than those of newr structures, structures destroyed or lands newly brought upon the tax list?
    We assert that such powder exists in the board of review; the defendant in error denies it.
    The power contended for is evident from the language employed in the act.
    While emphasis should be given to that portion of the act in question (Section 2819-1, Revised Statutes), providing that the boards of review ‘shall be governed by rules prescribed for the government of decennial county and state boards, and annual county and city boards for the equalization of real’ and personal property” — equal emphasis should also be given to the other portion bf the act which provides that the boards of review shall immediately become “the successor of said boards of revision (annual and decennial), said annual city board and said decennial city board, all of which boards shall, upon the appointment of a board of review in any municipal corporation under this act, be abolished.”
    From this language we observe explicit authority is vested in boards of review to be not only boards of equalization but also boards of revision. The annual city board of revision and the decennial city board of revision are abolished and their powers pass, in toto, to the board of review. To raise values and reduce values, to equalize values and to revise values are among the powers thus conferred.
    Section 2 of Article XII of the constitution of 1851 compels the view that such boards are required to equalize the valuation of real property as well as of personal property, moneys and credits. The language above quoted is not susceptible of applying the same to one subject, personal prop- ■ erty, and withholding it from the other, real property.
    If, to “equalize” implies the necessity of an increase or a decrease of personalty valuations by what reasoning are we to restrain the application of the same language with the same meaning from realty valuations? This is especially true when we are seeking to observe the constitutional mandate to tax- all real and personal property by a uniform rule.
    But, we contend, the language of the act under consideration confers the power more patently upon the board to increase real estate values than that of personalty. This arises from the language negativing the power to reduce the values of real property below the aggregate value thereof as fixed by the state board of equalization, or below its aggregate value on the duplicate of the preceding year.
    The limitation upon the right of reduction of values is to preserve the minimum aggregate value as having been fixed by the state board of equalization, decennially, so that the state authorities could in safety provide a tax rate by which to compute upon this amount an income sufficient to cover all the state’s expenses. The prohibition was only' against the reduction. If there was a substantial increase in values, ad interim, decennial periods, the income to the state would be correspondingly increased, hence, the prohibition did not operate against the power to increase values.
    In this contention, we' are sustained by many decisions asserting that in case of a doubtful construction of power, that construction should be upheld which would sustain the statute as a valid constitutional enactment in preference to that which would be contrary to the letter of the constitution. It has further been frequently emphasized by this court that Section' 2 of Article XII above cited furnishes the “governing principle” for all .laws under which property is taxed. Mitchell & Watson v. Treasurer, 25 Ohio St., 156; Wagoner v. Loomis, 37 Ohio St., 578; State, ex rel. v. Morris et al., 63 Ohio St., 496; Lander v. Bank, 186 U. S., 458.
    While the question here presented has never been directly before this court, the following dicta support our position: Gaylord et al. v. Hubbard, Treas., 56 Ohio St., 25; Mills v. Board of Education, 1 C. S. C. R., 556; Humphreys, Auditor, v. Deposit Co., 29 Ohio St., 608; State, ex rel., v. Raine, 47 Ohio St., 447; Black et al., Trustees, v. Hagerty, Auditor, 60 Ohio St., 551; State, ex rel., Board of Equalization, 65 Ohio St., 544; State, ex rel., v. Lewis, Auditor, 64 Ohio St., 216; State, ex rel., v. Rockwell et al., 70 Ohio St., 440; State, ex rel., v. Clark et al., 68 Ohio St., 463; Sections 2804 and 2814, Revised Statutes.

      Mr. J. S. Martin and Mr. H. C. Webster, for plaintiffs in error in both cases.
    1. This act is a valid and constitutional enactment. State, ex rel., v. Clark et al., 68 Ohio St., 463; Wagoner v. Loomis, 37 Ohio St., 571; State, ex rel., v. Jones, Auditor, 51 Ohio St., 492; Shotwell v. Moore, 45 Ohio St., 632.
    2. The constitution of Ohio provides but one rule for the valuation of all property, viz., according to its true value in money. The questions of uniform rule and true value are discussed and their meaning enlarged upon in several Ohio, cases. Bank v. Hines, Treas., 3 Ohio St., 1; McCurdy, Gdn., v. Prugh, Treas., 59 Ohio St., 465.
    3. The board appointed under this act is empowered, upon proper notice to the owner of real property, to increase the value of such property, when such value is, in the judgment of the board. below its true value in money. Mitchell & Watson v. Treasurer, 25 Ohio St., 143; Section 2, Article XII, constitution; Ransom v. Potter, Treas., 22 C. C., 388; State, ex rel., v. Raine, 47 Ohio St., 447; Black & Archer, Trustees, v. Plagerty, Auditor, 16 C. C. 255; Sections 2804, 2805 and 2814, Revised Statutes.
    4. No complaint of .any character is necessary to give the board of review jurisdiction. Britt v. Lewis, Auditor, 16 C. C., 343; 60 Ohio St., 589.
    5. The board of review is presumed to have acted in good faith in the exercise of its powers and in the performance of its duties. State ex rel., v. Lewis, Auditor, 64 Ohio St., 216; Hagerty, Auditor, v. Huddleston, Hubbard & Co., 60 Ohio St.,, 149; Hambleton v. Dempsey & Co., 20 Ohio., 168; People, ex rel., v. Board of Equalisation, 102 N. Y., 630; Frats v. Mueller, 35 Ohio St., 397.
    6. Mistaken judgment of the board of review, or inequalities in valuations, in the absence of fraud, do not afford grounds for relief to the taxpayer. Cooley on Taxation, 221; City of Findlay v. Frey, 51 Ohio St., 390; Loring v. State, 16 Ohio, 590; Spencer & Gardner v. People, 68 Ill., 510; City of New York v. Tucker, 91 App. Div. N. Y., 215; State v. Savage, Governor, et al., 65 Neb., 714; Bank v. Commonwealth, 80 S. W. Rep., 479; Gaylord et al. v. Hubbard, Treas., 56 Ohio St., 25.
    In their reply brief, counsel for plaintiffs in error cited and commented upon the following authorities: Bank v. City of Toledo, 1 Ohio St., 623; Scott’s Sons v. Raine, Auditor, 25 W. L. B.; 1541 Britton v. Baker et al., 13 Ohio Dec., N. P., 107; Cummings v. Bank, 101 U. S., 153; Schindler v.
      Lewis, Auditor, 16 C. C., 348; State, ex rel., v. Lewis, Auditor, 1 C. C., N. S., 56; Humphreys, Auditor, v. Deposit Co., 29 Ohio St., 608; Crozer v. People, ex. rel., 206 Ill., 464; State, ex rel., v. Morris et al., 63 Ohio St., 496; Scarborough v. Gibson, 13 Ohio Dec., 738; Black et al., Trustees, v. Hagerty, Auditor, et al., 60 Ohio St., 511; Ludlow et al. v. Lewis, Auditor, 9 Ohio Dec., 600; Lewis, Auditor, v. State, ex rel., 69 Ohio St., 479; Trust Co. v. Lander, Treas., 62 Ohio St., 266; Sections 2753, 2804 and 2806, Revised Statutes.

      Mr. F. E. Calkins; Mr. L. W. Storey and Mr.. Thomas H. Tracy, for defendant in error in case No. 10408.
    The board of review has no power to place a new and independent valuation on real estate in the middle of the tax decade, and as of the time when the revaluation is made, except in the case of new structures, structures destroyed, and lands newly brought into the tax list.
    Surely the legislature has intended that since 1870 the valuation found by the decennial appraisment should remain fixed for ten years; otherwise it would have provided that the appraisement should be made more often than once in ten years. _ ■
    It is. worthy of observation. that Section 2753, Revised Statutes, gives power to the annual assessor to increase or reduce valuation where the actual substance of the realty has been added to or ■ destroyed, but no such power is given where the assessor may find that the realty is more or less valuable than at the beginning of the decennial period, on account of fluctuation in prices. Schindler v. Lewis, Auditor, 16 C. C., 348 State, ex rel., v. Lewis, Auditor, 1 C. C., N. S., 50 Scott's Sons v. Raine, 25 W. L. B., 154; Crozer v. People, ex rel., 206 Ill., 464, 69 N. E. Rep., 489; Scarborough v. Gibson, 13 Ohio Dec., 738; Britton v. Baker et al., 12 Ohio Dec., 107; State, ex rel., v. Morris et al., 63 Ohio St., 496; State, ex rel., v. Raine, 47 Ohio St., 447; Humphreys, Auditor, v. Deposit Co., 29 Ohio St., 608; Mills v. Board of Equalization, 1 C. S. C. R., 566; Wagoner v. Loomis, 37 Ohio St., 571; Black et al., Trustees, v. Hagerty, Auditor, 60 Ohio St., 559.
    These cases recognize and establish three propositions concerning the boards of which the board of review is the successor: 1, that they are equalizing boards; 2, that their operations relate back to the beginning of the decennial period; 3, that they are subject to the rules in Section 2814, Revised Statutes. These facts are inconsistent with the holding in Ransom v. Potter, 22 C. C., 388, where the main question of the case at bar is very clearly and forcefully decided in favor of defendant in error. •
    The case of Gaylord et al. v. Hubbard, Treas., 56 Ohio St., 25, is very much in point.
    If Section 2819-1, is not rendered unconstitutional by the- empowering paragraph (third paragraph) it must be given some other interpretation than that given to Section 2805-b, Revised Statutes, and different from that claimed by plaintiffs in error. But to give it a different interpretation is an argument in itself that the board of review acted without authority. Where two interpretations of a statute are possible, one of which will render it unconstitutional, and the other will not render it constitutional, the latter interpretation should be adopted to preserve the statute. The acts of the board of review should be held void rather than that Section 2819-1 should be held void. Commercial Co. v. Manufacturing Co., 55 Ohio St., 217.
    Section 2819-1, Revised Statutes, should be construed in connection with all other statutes relating to the fixing of tax values of- real estate in Ohio. City of Cincinnati et al. v. Guckenberger, 60 Ohio St., 353; City of Cincinnati v. Connor, 55 Ohio St., 82; Cooley’s Constitutional Limitations, 7th Ed., 711; Cameron v. Cappeller, Auditor, et al., 41 Ohio St., 533; State v. Grow, 105 N. W. Rep., 898.
    The valuation by the board of review is illegal because it acted without evidence.
    Additions or deductions by a board of equalization should be made upon satisfactory evidence of the facts and not arbitrarily without any evidence of the facts to support the same. Fratz v. Mueller, 35 Ohio St., 397; Harvesting Co. v. Sims, Treas., 14 Ohio Dec., 15; Rawson & Co. v. Schott, Treas., 14. C. C., 94; Britton v. Baker, 12 Ohio Dec., 107.
    The board of review of Toledo in the year 1905 could sit only as an annual city board of equalization', or revision. As such board it could act only when a proper complaint was filed with it to the effect that the valuation complained of was returned wrong in 1900.-
    The different sectibns and provisions of a statute of this character must be construed together, and, if possible, a construction placed on the wholq statute, which will give effect to every section and every clause. Medical College v. Zeigler et al., 17 Ohio St., 52; State, ex rel., v. Blake et al., 2 Ohio St., 147; Aspley v. Murphy, 2 U. S. App., 382; State, ex rel., v. Road Co., 16 Ohio St., 308; Sections 2814a, 2814-3 and 2814-8, Revised Statutes.
    There is no presumption in this case’ that the board of review acted in good faith. The unwarranted acts of the board of review are not justified by good faith. Bank v. Hines, 3 Ohio St., 15; Cooley on Taxation, 2d Ed., 245; Cooley on Constitutional Limitations, 7th Ed., 705; McCurdy, Guardian, v. Prugh, Treas., 59 Ohio St., 465; Kemper et al. v. McClelland’s Lessee, 19 Ohio St., 308.
    Where the inequality results from the acts done without authority the maxim de miniums lex non curat has no application; no matter how small, they can not be held to be unimportant and overlooked. Cooley Constitutional Limitations, 7th Ed., 747.
    The true rule of law governing this case we think is to be found in: Gray’s Limitation of Taxing Powers, Sec. 1469; Bank v. Kimball, 103 U. S., 732; Cummings v. Bank, 101 U. S., 153.
    Where, though the law itself is unobjectionable, the officers who are appointed to make assessments combine together and establish a rule of valuation, the necessary result of which is to tax one species of property higher than the average rate, a court of equity will give relief. Desty on Taxation, Vol. 1, page 428. Hagerty et al. v. Huddleston, Hubbard & Co., 60 Ohio St., 165.

      Mr. W. S. Thurstin and Messrs. Seney & Thurstin, for defendant in error in case Ño. 10409.
    The sections of the state constitution bearing upon the subject of taxation, are: Section 5, Article XII; Section 2, Article XII; Section 4, Article XII; Section 26, Article II.
    Under the last section in Gaylord et al. v. Hubbard, Treas., 56 Ohio St., 33, the court found and decided that the Cleveland Act — 89 Ohio Laws, 283, to provide for a board of equalization and assessment in cities of second grade, first class— was unconstitutional.
    A comparison of the Cleveland Act with Sections 2819-1 and 2819-2, of the Revised Statutes, shows that our present board of review law is substantially a replica of the Cleveland Act, hence the criticism of the court in Hubbard v. Gaylord as to the differing powers granted by the general tax law and by the Cleveland Act, is just as applicable here as there. Longworth v. City of Cincinnati, 17 C. C., 18; Commissioners v. Rosche Bros., 50 Ohio St., 103.
    It has been held that valuations oí realty by different agencies is not necessarily repugnant to the constitution. We do not contend against this principle, but say it is vicious in its tendency, because it tends to open the door to jobs and combines and is destructive of the confidence which the citizen should have in his government.
    The American citizen under his system of government expects, arid by all constitutional guaranties has a right to expect, only to carry his own burdens, and not the burden rightfully assignable to another. Santa Clara County v. Railroad Co., 18 Fed. Rep., 385.
    If we understand the drift of recent decisions of this court, it is to the effect that classification of cities has been sustained by this court upon the grounds of necessity for the purposes of organization of municipal corporations, and conferring upon them corporate powers, and for. no other purpose. City of Cincinnati v. Steinkamp, 54 Ohio St., 284; Hixson v. Burson, 54 Ohio St., 470.
    We have -considered this question under the aspect that the law, known as the Municipal Board of Review Law, construed as it was by Judge Bradbury, in the Cleveland case is unconstitutional and void.
    . It will be remembered that the Board of Review Law is in all of its substantial provisions an adoption of the Cleveland Act, pronounced unconstitutional in the Gaylord case, because it was a law of a general nature and did not have a uniform-operation throughout the state. Cooley on Taxation, Chap. 12, 250; State, ex rel., v. Bargus et al., 53 Ohio St., 106.
    With the wisdom or the policy which the gentral assembly has, through the provisions of this act, attempted to establish in the two counties named, we have nothing to do. If it be unwise, this section forbids its application to Erie and Huron counties except by a law of uniform operation throughout the state which shall affect the interests of all constituencies and thus challenge the attention and judgment of all representatives. If it be wise, this section beneficently requires that the people of the whole state shall share, in its benefits. We are aware of no decision of this court in conflict with these views. McGill v. State, 34 Ohio St., 228.
    The attempted limitation of the scope of Section 26, Article II, in some of the cases cited, is too narrow; notably is this true of the case of McGill v. State and Cass v. Dillon, supra. State, ex rel., v. Davis et al., 55 Ohio St., 21.
    Our sense of the inherent fitness of things finds much to commend in the theory that all general subjects should be regulated by general laws, and all subjects of a local nature, by local laws. This court, however, as well as those of other states having a similar provision, in the practical administration of justice, has not adhered to this theory; though at all times and in every case, the subject of legislation has been accorded great weight in determining the character of the statute, and has generally controlled the question. Kelly v. State, 6 Ohio St., 269.
    The only practicable rule on the subject is that which requires each case as it arises to be placed in the one class or the other, as the common understanding of mankind may dictate. This is the rule of inclusion and exclusion, adopted by. the Supreme -Court of the United States in Davidson v. New Orleans, 96 U. S., 97.
    An enactment is not determined to be constitutional by its form, but by its operation.
    We hesitate to say that it is an open secret, that the law contemplated the establishment of a bureau for official purposes, to serve its promoters, in one way, and the citizens in another way, in a way in which he, the citizen, despises. Fields v. Commissioners, 36 Ohio St., 476; State, ex rel., v. Commissioners, 31 Ohio St., 592; State, ex rel., v.
      Commissioners, 56 Ohio St., 718; Mott et al. v. Hubbard, Treas., et al., 59 Ohio St., 210; State, ex rel., v. Buckley et al., 60 Ohio St., 296; State, ex rel., v. Brown et al., 60 Ohio St., 469; Lehman v. McBride, 15 Ohio St., 573; City of Cincinnati v. Trustees, 66 Ohio St., 448.
    Those who are charged with the exercise of judicial power in a constitutional government can not too often advert to Marbury v. Madison, Secretary of State, 1 Cranch, 137. The opinion of Chief Justice Marshall in that case, is justified because of its demonstration that with respect to the adjudication of questions of this character, that which is sometimes urged and regarded as mere compromise or concession, is, in fact, a dereliction of duty. Since the soundness of that doctrine is universally admitted, its effect should not be evaded. State, ex rel., v. Yates, 66 Ohio St., 548; State, ex rel., v. Spellmire et al., 67 Ohio St., 80; Cass v. Dillon, 2 Ohio St., 607.
    The first effort of this court to carve a special subject-matter out of a general one, so ar as we know is in the case of State, ex rel., v. Judges, 21, Ohio St., 1; and there is little left of that effort since the decision of the case of State, ex rel., v. Yates, supra.

    Counsel then cited and commented upon the following: State v. Powers, 38 Ohio St., 54; State, ex rel., v. Shearer et al., 46 Ohio St., 275; State, ex rel., v. Ellet et al., 46 Ohio St., 97; Cummings v. Bank, 101 U. S., 153; Taylor et al. v. Railroad Co., 88 Fed. Rep., 350; Railroad Co. v. Supervisors, 68 Ill., 458; Sherlock et al. v. Village of Winnetka, 68 Ill., 530; Attorney General, v. Road Co., 11 Wis., 33; City of Janesville v. Markoe, 18 • Vis., 350; Marsh et al. v. Supervisors et al., 42 Wis., 502; Merrill v. Humphrey, Auditor, et al., 24 Mich., 170; Solomon v. Township Oscoda, 43 N. W. Rep., 990; Trust Co. v. Stone, Auditor, et al., 107 Fed. Rep., 305; Railroad Co. v. Coulter, Auditor, et al., 131 Fed. Rep., 282; State, ex rel., v. Lewis, Auditor, et al., 74 Ohio St., 415.
    The term “taxes” in-our constitution respecting uniformity comprehends “valuation” and .should be interpreted to read: Art. XII, Sec. 2 — Laws shall be passed taxing and assessing by uniform rule.
    So the imposition of the burden in disregard of any rule of uniformity is always held unwarranted. Cooley on Taxation, 1st Ed., 259; Supervisors v. Railroad Co., 44 Ill., 229; Bank v. Hines, 3 Ohio St., 15; Railroad & Telegraph Co. v. Board of Equalizers, 85 Fed. Rep., 302.
    A law respecting taxation (and that of necessity includes valuation) must be of uniform operation throughout the territory to which it applies. Pelton v. Bank, 101 U. S., 143; Ex parte Bridge Co., 62 Ark., 461; Randell v. City of Bridgeport, 63 Conn., 321; Walsh v. King et al., 74 Mich., 350; County of Otter Tail v. Batchelder et al., 47 Minn., 512; State v. Reddington Township, 36 N. J. L., 66; Puitt et al. v. Commissioners, 94 N. C., 709; Mott et al. v. Railroad Co., 30 Pa. St., 9; Kemble v. Titusville City, 135 Pa. St., 141; McTwiggan v. Hunter et al., 18 R. I., 776; Knowlton v. Supervisors, 9 Wis., 410; Cooley on Taxation, 68. Cooley on Constitutional Limitations, 499-503; Cooley on Taxation, 2d Ed., 748, 751; Gilman v. City of Sheboygan, 2 Black (U. S.), 510; City of Zanesville v. Auditor; 5 Ohio St., 592; County

      of San Mateo v. Railroad Co., 8 Sawyer, 238; Santa Clara County v. Railroad Co., 9 Sawyer, 165.
    The willful disregard for equality and uniformity of valuation amounts to fraud. Andrews v. King County, 1 Wash., 46; Railroad Co. v. Jackson County, 38 Ore., 589.
    Where it appears on the record that there is a gross inequality in the assessment and*valuation of property, and that this inequality is the result of the deliberate action of the authorities making such assessment, such inequality will be deemed fraudulent and excessive and will be corrected. Weeks v. City of Milwaukee, 10 Wis., 242; Taylor, Governor, v. Railroad Co., 88. Fed. Rep., 350; affirmed, 172 U. S., 647.
    Equality of burden is the essence of a lawful taxation, unequal taxation or valuation, to the extent of such inequality, is confiscation, not taxation. The rule of uniformity in valuation overrides that of actual value.
    Bearing in mind the general principles above enunciated, we call attention to the following leading cases from the various states that have constitutional provisions in effect like our own. Fletcher v. Oliver, 25 Ark., 289; Land Co. v. Gowen, Sheriff, 48 Fed. Rep., 771; Railroad Co. v. Boone County, 44 Ill., 241; Darling v. Gunn, 50 Ill., 424; Kimball v. Loan & Trust Co., 89 Ill., 611; Hazzard v. O’Bannon, 36 Fed. Rep., 854; Graham v. Commissioners, 31 Kans., 473; Railroad Co. v. Commissioners et al., 54 Kans., 781; Hawkins v. Mangum, 78 Miss., 97; State et al. v. Commissioners, 38 N. J. L., 173; London et al. v. City of Wil

      mington, 79 N. C., 109; People v. Weaver, 100 U. S., 539; Bank v. Hungate, 62 Fed. Rep., 548.
    And the following from states have no constitutional provision in respect to uniformity and equality in taxation, the decisions based on the principle of equity. Manufacturing Co. v. Strafford, 51 N. H., 455; People, ex rel., v. Carter et al., 109 N. Y., 576; Bank v. Parker et al., 41 Fed. Rep., 402.
   Price, J.

We learn from the petition, which the circuit court sustained when assailed by general demurrer, that at the decennial appraisement in the year 1900, by the action of the decennial district appraisers, the decennial board of equalization and revision, and the state board of’ equalization, the property of The National Land & Investment Company, defendant in error, was valued for the purposes of taxation for the decade to 1910, at $16,380, and it was so entered on the tax duplicates of the county and remained until the year 1905. No increase in the value of the real estate occurred since the year 1900, except such increase as was common to other real property in Lucas county, and no new structure has been erected on the property since the decennial appraisement of 1900.

In the year 1905 the board of review of the city óf Toledo concluded to revalue or reappraise twelve blocks of real estate near the heart of the city, of which the premises of defendant in error is a part,. and to that end the board ordered its clerk to file complaints against the existing valuation of the property in said blocks, which order the clerk obeyed. No complaints were filed by any one else.

The board notified the owners of real estate in the said blocks of a time and place of hearing, .which notice recited, “when said board will consider and act upon a petition to review for taxation and to revalue and equalize the valuation of real estate, etc.”

At the hearing, testimony was heard as to the value of the real estate in the year 1905, but none was considered as to the value of the same property at the time of the last decennial appraisement. The board revalued the property of the defendant in error at $24,810, an increase of about fifty per cent. This revaluation was certified by the board to the auditor of the county, and after he placed the same on the duplicates, they were delivered to the county treasurer for collection in the year 1905. The treasurer refused to accept the taxes according to the decennial appraisement, but demanded the taxes based on the increased valuation. The circuit court, on a petition for that purpose, awarded an abatement of the additional burden and enjoined the collection of the taxes as to the increase of valuation.

The rather novel proceedings of the board of review are attempted to be justified by certain sections of the Revised Statutes, from which are selected as giving clear authority, Sections 2804, 2805 and 2819-1; and they will now receive our attention.

Section 2804 provides for an annual county board of equalization “for the equalization of real and personal property, moneys and credits in each county, to be composed of the county commissioners and county auditor, who shall meet for that purpose at the auditor’s office in each county, on Wednesday after the third Monday in May, annually.”

The section proceeds to say:

“Said board shall "have power to hear complaints, and to equalize the valuation of all real and personal property, moneys and credits within the county, and shall be governed by the rules prescribed for^the government of decennial county boards for the equalization of real property; provided, that said board shall not reduce the value of the real property of the county below the aggregate value thereof as fixed by the state board of equalization, nor below its aggregate 'value on the duplicate of the preceding year, to which shall be added the value of all new entries and new structures over the value of those destroyed, as returned by the . several township assessors for the current year; provided further, that except as to new structures, and structures destroyed, and lands and lots.brought onto the tax list since the preceding decennial state board of equalization, the annual county board shall not increase or reduce the valuation of any real estate, except upon reasonable notice to all persons directly interested, and an opportunity for a full hearing of the question involved. Said board is authorized, by its president, or presiding officer pro tem.,- to administer oaths, call persons before them, and examine them under oath as to their own or other’s property, moneys, credits and investments to be placed on the duplicate for taxation, or the value thereof, and order any property, moneys, credits or investments to be placed on the duplicate, which have not been listed for taxation, and fix the value thereof according to law,, and .increase the valuation of such property, moneys, credits and investments as have, in their judgment, been listed at less than their true value in .money, and reduce the value of such as have been appraised above their true value in money.” * * *

Section 2805 relates to the powers and duties of annual city boards of equalization, and the part thereof which is important here reads:

“Said'board shall have all the powers, and be governed by the rules, provisions and limitations prescribed in the next preceding section, for the annual county board; each member of said board is authorized to administer oaths, and said board is empowered to call persons before them, and examine them, under oath, in regard to their own or' others’ property, moneys, credits and investments, and the value thereof, and to equalize the value of real and personal property, moneys, credits and investments within such cities, and to order any property, credit or investment to be placed on the duplicate for taxation, and fix the value thereof according to law, which has not been listed for taxation, and to increase the value of such property, moneys, credits and investments as have; in their judgment, been listed at less than their true value in money, and to reduce the value of such property, moneys, credits or investments as have been’ appraised above their true value in money.” * ‡ „

Section 2819-1 provides for powers of a board of review for municipalities, and the part pertinent to the present controversy reads:

“Said board of review shall, within and for their respective municipalities have all the powers and perform all of the duties heretofore conferred upon or required of the annual city board for the equalization of the value of real and personal property, moneys and credits; the decennial city board, for the equalization of the value of real property; the annual city board of revision; and the decennial city board of revision,, under any and all laws now in force, pertaining to such municipalities. And said board of review shall be the successor of said board of revision, said annual city board and said decennial city board, all of which boards shall upon the appointment of a board of review in any municipal corporation under this act be abolished. Said board of review shall have power to hear complaints and to equalize the valuation of real and personal property, moneys and credits within such municipal corporation as said board of review may be located, and shall be governed by rules prescribed for the government of decennial county and city boards, and annual county and city boards, for the equalization of real and personal property.”

Inasmuch as two of these sections refer to thq rules by which the board of equalization in one case, and the board of review in the other, should be governed, it is proper now to state the rules which are prescribed for decennial county and city boards of equalization, and they are found in Section 2814, Revised Statutes. It is there provided as to the decennial board that the auditor shall lay before the board the returns made by the district assessors, with the additions which he shall have made thereto; and they shall then ■ immediately proceed to equalize such valuation, so that each tract or lot shall be entered on the tax list at its true value, and that for this purpose they shall observe the following rules:

“1st. • They shall raise the value of such tracts and lots of real property as, in their opinion, have been returned below their true value to such price or sum as they may believe to be the true value thereof agreeably to the rule prescribed by this title for the valuation thereof.
“2d. They shall reduce the valuation of such tracts and lots as, in their opinion, have been returned above their true value, as compared with the average valuation of real property of such county, having due regard to their relative situation, quality of soil, improvement, natural and artificial advantages possessed by each tract or lot.
“3d. They shall not reduce the aggregate value of the real property of the county below the aggregate value thereof as returned by the assessors, with the additions made thereto by the auditor as hereinbefore required.” The provision is made that such county decennial board of equalization may be called to sit as a board of revision which may hear complaints and equalize value where necessary: -

■Similar rules are provided for the government of decennial municipal boards. See. Section 2816, Revised Statutes.

While treating upon the powers, duties and limitations of decennial county and city or municipal boards, it becomes natural to look at the further use made of their proceedings by the decennial' state board, for after the decennial county and municipal boards have performed their work of equalizing and revision, where revision is provided and called for, the case is made ready for the state decennial board, and it is made the duty of each county auditor to make out and transmit to the auditor of state the information required by Section 2817, and perhaps other sections not material here. The state board is required to equalize the valuation of real property among the several counties and towns in the state according to rules prescribed by the statute. When the state board of equalization has completed its work of equalization, the auditor of state shall transmit to, each county auditor a statement of the per centum to be added to or deducted from the valuation of the real property of his county, specifying the per centum added to or deducted from the valuation of the real property of each of the several towns, and of the real property not in towns, etc. The state board deals with the towns and counties and may increase or decrease the valuation of a county or town by a certain per centum. It does not deal with individual owners. It then becomes the duty of each county auditor to make the additions and deductions of the per centums so certified to him. When all this has been done, there is further need for the county and city boards of equalization, and there is a time fixed in which they shall complete their work of equalization. See Section 2819, Revised Statutes.

Thus we see the details of the state decennial appraisement of all the real property of the state, and the careful arrangement of details from the work of the decennial district land assessor to and through the different boards and the state board, so that an equitable valuation may be arrived at, and which should be the basis of all levies for the decade next ensuing.

This view is somewhat advanced by a consideration of the latter part of Section 2792 and supplemental Section 2792a. These provisions are amendatory of and supplementary to the statutes authorizing and regulating the decennial appraisement of real estate. The latter part of the former section provides “that the annual board of equalization may reduce the mineral value assessed against lands containing or producing petroleum, (oil), natural gas, coal, ore, limestone, fire clay, or other minerals in • proportion as the product of such mineral has diminished, if such mineral product was considered as a part of the value of said real estate in its previous appraisement for taxation,” etc.

Section 2792a (97 O. L., 294) supplementing the former, provides, in substance, that in all cases where the fee of both the soil and the minerals — except crude petroleum and other like sub-stances — of any lot or parcel of land were owned by the same person or persons, when the last decennial appraisement was made, but the title of the fee of the soil is now in one or more persons, and the title to such minerals, or any of them, is now in another person or persons, it shall be the duty of the county board of equalization, at its annual meeting each and every year, other than decennial year, to divide or apportion the valuation of such tract or parcel of lands made at' the next preceding decennial appraisement, between the owner of the fee in the soil and the owner of such minerals, so held separate from the fee of the soil, equitably, according to the relative value of the interests so held by such owners of the fee of the soil and such minerals respectively; such division or apportionment shall be and remain in force until the next decennial appraisement.

In such cases there is no increase in the taxable valuation under these sections, but a division and apportionment of values between the owner of the soil and the owner of the minerals, which shall stand until the next decennial appraisement.

These various provisions develop a scheme of general and equal appraisement of all the real property of the state, which, unless in excepted cases should stand during the decennial period. The policy of the legislation indicates that the state desired a fixed basis whereon to calculate its revenues which would not be affected by reduction during a certain period of years; and we think it is also within that policy that the owner of real estate should have, during the same period, repose from frequent changes in valuation, and he is entitled to that, unless the statute gives plain authority to the subordifnate boards to make such changes. The above statement of the general method and scheme of decennial land appraisal takes us back to the sections of the Revised Statutes which we have first quoted, and the inquiry is renewed — do they justify and authorize the proceedings complained of in the petition?

Section 2804 defines the powers and duties of a county board of equalization, and it “shall have power to hear complaints and equalize the valuation of all real and personal property, moneys and credits within the county, and shall be governed by the rules prescribed for the government of decennial county boards for the equalization of real property; provided, that said board shall not reduce the value of real property of the county below the aggregate value thereof as fixed by the state board of equalization, nor below the aggregate value on the duplicate of the preceding year. * * *” As to new structures, and structures destroyed,' and lots and lands brought on to the tax list since the preceding decennial state board of equalization, the county board may increase or reduce the valuation of real estate without notice, but- as to other real estate, notice and an opportunity to be heard .must be given to all persons directly interested. Persons may be examined under oath as to their, own and the property of others. The value of such' property may be increased where it has been listed at less than the true value, and the value may be reduced where the property was listed at too high a value.

When we take up Section 2805, providing for annual city boards. of equalization, we find its terms substantially like those of 2804. Each board is primarily one of equalization, and to carry out the work of equalization, the limitations and'rules prescribed for the government of decennial county, boards -apply, and we have already quoted these rules.

It is important to bear in mind these rules and limitations because Section 2819-1, defining the powers and duties of the new board of review, says it shall, within and for their respective municipalities, have all the powers and perform all the duties heretofore conferred upon or required of fhe annual city board for the equalization of the value of real and personal property, etc.; the decennial city board for the equalization of the value of real property; the annual city board of revision, and the decennial board of revision * * *. This board of review became the successor of the board of revision, said annual city board, and said decennial city board. The section proceeds: “Said board of review shall have power to hear complaints and to equalise the valuation of real and personal property, moneys and credits within such municipal corporation, g.s said board of review may be located, and shall be governed by rules prescribed for the government of decennial county and city boards, and annual county and city boards for the equalization of real and personal property.”

We have already seen the scope and limitations on these several boards referred to.

What is the practical meaning of this language concerning ail increase or reduction in values mentioned in this and the other sections where found? Does it' mean that the board may arbitrarily increase the value of real estate during' the ■ decennial period, and do nothing more? Or, does it contemplate that when the board finds on complaint, that some real estate has been listed too high, and other real estate in the same locality or district has been listed too low, producing a case of gross inequalities, the one may be reduced and the other increased, and they, with other real property affected, substantially equalized? The latter seems to be the more reasonable construction.

It would not be proper or necessary to increase a low valuation, unless relief is at the same time granted to one or more whose real property has been listed too high. Again, if there is no instance where property was valued too' low, a reduction of the high valuation of other property could not be made without reducing the aggregate, which is forbidden. So it was the rule followed by the decennial county and city boards of equalization, that where the district real estate assessor returned certain real estate at a valuation too high, and other real estate too low, the board could take from one and add to the other in the process of equalization, and so in like instances until that work was complete. That was one of the working rules of the city decennial board of equalization, whose duties are now vested in boards of review of such municipalities as are entitled to the same under the'statute; and we think that the boards of review, being clothed with powers of equalization, are to be governed by the spirit of the rule which has generally been followed as to the increase and reduction in real estate values. Indeed, the latter part of Section 2819-1 expressly provides that the board “shall be governed by the rules prescribed for the government of decennial county and city boards, for the equalisation of real and personal 'property.”

Again we see that equalisation is the paramount purpose and design of the statutes creating these different boards. To increase values serves only half of the legislative design, and that is legitimate only when the statutory machine performs its other functions as we recognize them. All the different statutory provisions relating to appraisement, revision, increase and reduction in real estate values and their equalization must be considered and so construed, if possible, as to make a just and harmonious system, not so much to unnecessarily increase as to equalize burdens.

It is therefore, evident from the different sections, when. we compare their terms, that there are some things which the city board of review is clearly authorized to do. It may review the returns of new entries, and the valuation of lands' newly platted which are in the corporation; the value of new structures as returned and the value of structures destroyed as returned and lots and lands restored to the tax list. Such a proceeding would almost necessarily require readjustment and equalization, and if in the course of said readjustment and equalization it is found in any case that certain real estate, as compared with other real estate in the locality, has been listed too low, and other real estate - listed too high, so that gross inequalities exist, the values may be increased or reduced as justice demands. But this increase in value may not be made arbitrarily, but in the process of equalization, which seems to be the paramount purpose of such boards. They are not boards of original appraisal, and such power to increase must be exercised, if at all, in connection with the primary work of equalization. There are also some things a board of review can not do. It may not reduce the value of the real property of the city below the aggregate value thereof as fixed by the state board of equalization, nor below its aggregate value on the duplicate of the preceding year. Such acts are expressly forbidden by the sections quoted.

It seems quite clear also that an increase in the valuation of realty can not be made except on complaint, and such complaint as we will later define.

According to the petition, what was the board of review doing and attempting to do when the action tinder review was commenced?

It was not undertaking to show that the rea] estate involved was listed too low when the decennial appraisal was complete, but that the value as listed was too low in the year 1905 — in the middle of the decennial period. Certain sections of the city of Toledo were selected as its field of operations. No one had requested the proceeding, except the clerk of the board, and his complaint .was filed under order of the board itself. There was no general movement to increase the taxable value of real estate of Lucas county, outside of Toledo, or of any real estaté anywhere outside the cities of the state, although the petition avers that the real estate outside the various cities has increased in value by a greater ratio than the increase in city real estate. And if the petition is true, as the demurrer admits, there was not in progress a general movement to raise the taxable value of the real estate in Toledo; and in this case it is said that the board did not take testimony or inquire into the relative value as between the lots' in question and other realty in the city.

Lienee, if we concede all that was attempted to be decided in Mitchell & Watson v. The Treasurer of Franklin Co., 25 Ohio St., 143, and in State, ex rel. Poe, v. Raine, 47 Ohio St., 447, cited by plaintiff in error, the action of the Toledo board of .review can not be sustained. Its course of procedure, as described in the petition, is in violation of the rules prescribed by the statftte heretofore stated.

The question .in the former case was different from ours, and different statutes were being con-. strued, as is apparent from the syllabus and statement of the case. The court was badly divided on the question decided, but in the opinion of Mc-Ilvaine, C. J., .there is some encouragement for the rule, that an annual board of equalization may increase the value of real estate within its jurisdiction under stated circumstances, which circumstances are absent in the present case. In the latter case, State, ex rel. Poe, v. Raine, questions unlike ours were decided, as a reading of the syllabus makes plain. Yet we are not at war with what was said in the opinions delivered in those and other, Ohio cases cited for plaintiffs in error, so far as they refer to the authority of a county auditor or an annual county or city board of equalization. ' The force of those opinions should be measured by the facts directly involved, just as in any other case decided by the court. If this board of review can radically change the decennial appraisal for the reasons adopted in 1905, the same thing may be done each year thereafter, and taxable values will be constantly fluctuating, and the taxpayer be kept in continuous turmoil. If the board can revolutionize the decennial appraisal in 1905, it could have done so in 1902, 1903 or 1904. The decennial appraisement, which many have been led to think amounted to something, would become a mere plaything, and might as well be abolished. But we are not yet ready to concede the authority for such a practice, or such fate of a decennial appraisal.

Another fact appears here that defeats the work of the board ‘complained of in the petition. The “complaint,” or “complaints,”, are made by the clerk of the board under its direction. No interested taxpayer seems to have come forward to demand a readjustment of real estate values. Is the statute complied with by the filing of complaint by the clerk? If a case of perpetual motion is desired, such practice would be convenient, but it is not an automatic action that the statutes recognize or allow, but there must be a real complaint by some one interested in having a change of valuation and an equalization within the rules of the law. Substantial interests of many owners may be involved, and the review or revision should be started legally as well as conducted legally.

The plaintiffs below urge the constitutional invalidity of the act creating the board of review, on grounds alleged in the petition and pointed out in the brief. But following the well-settled rule of this court, it does not become necessary for us to pass on that question, inasmuch as ample relief is granted on the other averments of the petition.

The judgments of the circuit court are affirmed.

Judgments affirmed.

Shauck, C. J., Crew, Summers and Davis, JJ., concur.


source: Caselaw Access Project

author: Shauck, C. J.

license: Public Domain

text:
    Schaefer et al. v. Bernhardt et al.

      Devise of real estate by wife to husband — Lapses if husband dies ■first, when — Interpretation of Section S971, Revised Statutes — ■ Phrase “other relative” — Law of wills — Descent of property.

    1. In the interpretation of Section 5971, Revised Statutes, to prevent the lapsing of a devise or legacy when made “to any child or other relative of the testator if such child or other relative shall have been dead at the time of the making of the will, or shall die thereafter, leaving issue surviving the testator,” the phrase “other relative” should, in accordance with the maxim noscitur a sociis, be restricted to relationships of the character indicated by the associated word “child,” and regarded as including those which are consanguineous, but .excluding, those which are affinitive merely.
    2. Notwithstanding the statute, a devise of real estate by a wife to her husband will lapse if his death precedes hers, although he • leaves issue of a former marriage surviving the testatrix.
    (No. 10026
    Decided June 4, 1907.)
    Error to the Circuit Court of Hamilton County.
    Catherine Schaefer intermarried with Ludwig Schaefer, a widower, and during coverture acquired certain real estate in Hamilton county, the real estate being particularly described in the petition. It has been claimed in the case by the plaintiffs in error that the husband had furnished the consideration for the purchase, and under circumstances which charged the title in her with a resulting trust in their favor. That claim, however, disappears from the case in view of the findings of fact made by the circuit court. ' On October 9, 1899, Mrs. Schaefer by valid last will and testament made the following disposition of her property: “I give and bequeath all my estate, real, personal or mixed, wherever the same may be, to my beloved husband, Ludwig Schaefer.” In the year 1900 Ludwig Schaefer died, leaving the plaintiffs in error, his children ,by a former marriage, his heirs at law. In June, 1902, Catherine Schaefer died, leaving no child, but leaving the defendants in error, who are her brother and sister, and the children of a deceased brother, her heirs at law. Notwithstanding the prior death' of her said hus.band, she left said instrument as her last will and testament. The plaintiffs in error claimed the property as the issue of the devisee surviving the testatrix. The circuit court adjudged that the property passed to the defendants in error, the heirs at law of the testatrix, upon the view that the devisee having-died before the testatrix, the devise lapsed and the subject of it passed as intestate property.

      Mr. Jacob Shroder and Mr. E. C. ■ Reemelin, for plaintiffs in error,
    cited and commented upon the following authorities:

      McGovern v. Knox, 21 Ohio St., 547; Mannix Assignee, v. Purcell et al., 46 Ohio St., 143; Parish, Admr., v. Rhodes et al., Wright, 339; Smithsonian Institution v. Meech, 169 U. S., 398; Cotton v. Wood, 25 Ia., 437 Katzenberger v. Fishel, 2 C. S. C. R., 368; Woolley et al. v. Paxson et al., 46 Ohio St., 307; Ward v. Bush et al., 59 N. J. Eq., 144; Ballard v. Camplin, 161 Ind., 21; White v. Agnew, 38 W. L. B., 47; Cleaver et al. v. Cleaver et al., 39 Wis., 96; Magoun v. Bank, 170 U. S., 285; Hartshorne et al. v. Ross, Admr., et al., 2 Disney, 26; Lessee of Prickett v. Parker, 3 Ohio St., 397; Turley v. Turley et al., 11 Ohio St., 181; Phillips, Exr., v. McConica,

      Gdn., 59 Ohio St., 3; Steele, Admr., v. Kurtz et al., 28 Ohio St., 196; Esty, Admr., v. Clark et al., 101 Mass., 36; Drew et al. v. Wakefield et al., Exrs., 54 Me., 291; Varrell v. Wendell, 20 N. H., 431; Gardner et al. v. Gardner, Exr., et al., 13 Ohio St., 431; Weston v. Weston, 38 Ohio St., 478; Life Association v. Pollard et al., 3 C. C., 578; Sections 4159, 4163 and 5971, Revised Statutes.

      Mr. John C. Healy and Messrs. Powell & Smiley, for defendants in error,
    cited and commented upon the following authorities:

      Gray v. Gray, 13 Neb., 453; 14 N. W. Rep., 390; Jencks et al. v. Alexander et al., 11 Paige, 619; Welton v. Devine, 20 Barb., 9; Scott v. Calladine et al., 79 Hun, 79, 29 N. Y. Supp., 630, 145 N. Y., 639, 41 N. E. Rep., 90; Wylie et al. v. Mansley, 6 Pa. Co. Ct. Rep., 205; Sweet v. Dean et al., 43 Ill. App., 650; Sunderland et al. v. Sunderland et al., 19 Ia., 325; Cairns v. Coburn, 104 Mass., 274; Alexander v. Warrance et al., 17 Mo., 228; Gilliland v. Gilliland, 96 Mo., 522, 10 S. W. Rep., 139; Ilgenfritz v. Ilgenfritz, 116 Mo., 429; Maxwell v. Maxwell et al., 109 Ill., 588; Smithsonian Institution v. Meech, 169 U. S., 393; Brown et al. v. Turner et al., 113 Mo., 27, 20 S. W. Rep., 660; Bodwell v. Nutter, 63 N. H., 446, 3 Atl. Rep., 421; Krauth v. Thiele et al., 45 N. J. Eq., 407, 18 Atl. Rep., 351; Rogers v. Murray et al., 3 Paige, 390; Hammond v. Hopkins, 143 U. S., 224; Warner v. Jackson, 7 App. Cases, 211, Rogers et al. v. Shewmaker et al., 27 Ind. App., 631; Thompson v. Stringfellow, 119 Ala., 317; Perry on Trusts, Vol. 2, Sec. 679;
      Black v. Black, 30 N. J. Eq., 215; Roper on-Husband & Wife, *220, 221; McLure v. Lancaster, 24 S. C., 274; Story’s Equity Jurisprudence, Vol. 2, Sec. 1284; Esty, Admr., v. Clark et al., 101 Mass., 36; Sackman et al. v. Campbell, Exr., 10 Wash., 533; Kimball v. Story et al., 108 Mass., 382; Keniston et al. v. Adams, 80 Me., 290; Cleaver et al. v. Cleaver et al., 39 Wis., 96; Mann et al., Exrs., v. Hyde et al., 71 Mich., 278; In re Estate of Pfeulb, 48 Cal., 643; 18 Am. & Eng. Ency. Law (2d Ed.), 756; Wisconsin Statutes, Vol. 1, Chap. 102, p. 1638; Howland v. Carson, 28 Ohio St., 625; Woerner on Administration, Sec. 939; Sec. 1, Sub. 1, 663, Maine Statutes; White v. Agnew, 38 W. L. B., 47; Phillips, Exr., v. McConica, Gdn., 59 Ohio St., 1; Upson, Admr., v. Noble et al., 35 Ohio St., 658; Quigley v. Mitchell, 41 Ohio St., 375; Section 5117, Revised Statutes of the United States; Section 5971, Revised Statutes.
   Shauck, C. J.

Counsel for the plaintiffs in! error concede that the judgment of the circuit ' court is correct unless the lapsing of the devise to Ludwig Schaefer, in view of his death before the death of the testatrix,- is averted by the provisions of Section 5971, Revised Statutes. The sole object of • the statute was to prevent the lapsing of legacies and devises in the cases to which it applies, a lapse having resulted from the application to such cases of the rules of interpretation which obtained prior to the enactment of the statute. The pertinent provision of the statute is: “When a devise of real or personal estate is made to any child or other relative of the testator, if such child or other relative shall have been dead at the time of the making of the will, or shall die thereafter, leaving issue surviving the testator, in either case such issue shall take the estate devised in the same manner as the devisee would have done, if he had survived the testator.”

The admitted task of counsel for plaintiffs in error is to sustain the proposition that the word “relative” in the connection in which it occurs in this statute includes relationships which are affinitive merely as well as those which are consanguineous; at least, that within its meaning the husband must be taken to be a relative of his wife. It is said that the word is here used in its ordinary sense and that the' lexicographers present definitions of the word which justify their conclusion. Certainly definitions which would justify either view may be found in the dictionaries. But in the making of laws words which have an established legal meaning are used with reference to that meaning, and a resort to the decisions will do much to remove the doubt in which the subject in hand would be left by the wide diversity of the meanings ■ of the word in popular use. An examination of the cases collected in the briefs and others shows that, the question not being affected by the context or by related provisions, the decisions have- quite uniformly regarded the word in statutes of this character as applying only to those who are related by consanguinity to the testator. Support for the contrary view can not be derived from the statutes entitling the husband to participate in the property ’which had belonged to the deceased wife, for they are prompted solely by a consideration of what is deemed to be due to him; while the present section, in no wise affecting the devisee’s interest in.the subject of the devise, is prompted solely by a consideration of what is deemed to be due to the issue of the devisee surviving the testator.

If the word should be regarded as including the husband there appears to be no principle upon which courts could deny it application to all of his relatives by blood, for the wife’s relationship to them is the same in kind, though different in degree, as to her husband. It is, therefore, with obvious reason that courts have invoked the rule noscitur a sociis as leading to the conclusion that the character of the relationship intended is that of the associated word “child,” that is, a relationship bjr blood. If the word child had been omitted from the statute, the view of plaintiffs’ counsel could have been urged with much greater force. This is not a remedial statute suggestive of aims for whose accomplishment the most comprehensive meanings of its terms should, if necessary, be adopted. It is a statute defining rights in property, and for that purpose introducing a rule which is in direct conflict with that which had previously applied to cases of like character. Its operation should, therefore, be no broader than is justified by the clearly expressed intention of the legislature. Another reason of weight favors the commonly accepted view of the subject. Throughout our statutes of descent and distribution obvious consideration is given to the law of nature by which our highest regard and chief concern are for those who are bound to us by the ties of blood. Devolution of title will be in accordance with that' rule if the word “relative” in this connection is taken in its legal sense, the subject of the devise passing as intestate property, there being no other disposition contingent upon the death of the devisee prior to that of the testator. If the opposite view should be taken the property here in controversy would pass to those for whom the law makes no provision in any contingency. It does not even attach so much importance to a relationship like that of the plaintiffs in error to the testatrix in the present case that it would serve to prevent an escheat to the state in case of her intestacy. The judgment of the circuit court is according to the commonly received view of the subject as well as to the reasons involved.

Judgment affirmed. ■

Price, Crew and Spear, JJ., concur.


author: Davis, J.

text:
    The New York, Chicago & St. Louis Railroad Company v. Ropp.

      Rules for car inspectors — Reasonable, when — Agreement to obey rule binding — Failure to obey — Not excused by consent of superior, when — Constitutes negligence — Master and servant.

    1. A rule which requires car inspectors or car repairers, when- at work under or about a car or train, to see for themselves that a blue flag by day or a blue light by night is displayed at each end of the car or cars, upon which they are working, is a reasonable rule, providing for the safety of employes and not limiting the master’s liability for negligence; and an agreement with the master by the servant at the time of his employment that he understood such rule and would obey it, is binding upon him.
    2. The failure to obey such rule is not excused by the presence or consent of another servant of-the master, who is superior to the servant who agreed to obey such rule, when the superior servant is not authorized to represent the master in the making or changing of rules or contracts; and failure to obey'the rule under such circumstances is negligence per se.

    (No. 10285
    Decided June 25, 1907.)
    Error to the Circuit Court of Hancock County.
    The plaintiff below brought suit to recover damages for an injury which he received while in the employ of- the Railroad Company and while he was upon a cut of cars working as a car repairer, in consequence of the failure to display signals, as required by the rules. When the plaintiff entered into the employment of the defendant below, he was shown certain printed rules of the Company and asked to read them, which he did. He was then asked if he understood them and said that he did, and he then signed a paper which contained a statement and promise that he had read those rules and would obey them. The rules, which were admitted in evidence upon the trial, were as follows: No. 36. “A blue flag by day and a blue light by night, placed .’on.the end of a car, denotes that car inspectors or car repairers are at work under or about'the.car or, train. . The car or train thus protected must not be coupled to or moved, until the blue signal is removed by the car. inspectors or car repairer.” No. .377. “Car inspectors report to and receive their instructions from master mechanics. They are.required to be fully conversant with,.the rules •governing interchange of ■ cars and inspect cars in accordance with same and with instructions .issued by the, superintendent of motive power'; must be prepared to make- any slight repairs that may be required, must be thoroughly familiar with the construction and manipulation of-air brake and steam heat equipment and air signal. When inspecting and repairing cars that shohld not be moved, they must protect themselves by placing conspicuously a blue signal at both ends of the car, as provided in rule 36.” No. .378. “Car repairers report to and receive their instructions from the foreman of the car repairers under the authority of the master mechanic. They are required in all cases, when doing work on or under cars which should not be moved, to see for themselves that a blue flag by day, or a blue light by night, is placed at each end of the car or cars upon which they are working.”
    The case was submitted to the jury substantially upon two propositions of law. First, whether Whalen, who was a car inspector and repairer, and who had called the plaintiff to the work which he was doing and was directing him in regard thereto, was the superior of the plaintiff; and whether the plaintiff was actually under his direction and control and bound to obey him, 'either by the terms of his employment or by the exercise of such custom or authority as was usual in the conduct of that particular business in behalf of. the Railroad Company. Second, if the jury should find that Whalen did have the. power and authority of direction and control over the plaintiff at the time of the accident, and that Whalen designated the place where plaintiff was at work when he was injured, and that plaintiff proceeded to work under such circumstances and conditions as gave him to understand in face of the rules requiring him to place a blue flag-at either end of the cars, that such flags had been so placed by Whalen, and that it was because such flags had not been placed that the accident occurred, the verdict should be for the plaintiff. The defendant moved the court to arrest the testimony from the jury and direct a verdict for the defendant, and also requested the court to charge the jury, that the court as a matter of law directs the jury to return a verdict in favor of the defendant Railroad Company, and also that it was the duty of the plaintiff himself under the rules to see that the blue flags were displayed while at work on this car, and that if he failed to so display them he could not recover. The court overruled the motion tó direct a verdict and refused to give the instructions requested. The verdict and judgment were for the plaintiff in the court of common pleas, and the judgment was affirmed by the circuit court. This proceeding in error is to reverse the judgment of both courts. ' .

      Mr. John H. Clarke and Messrs. Blackford & Blackford, for plaintiff in error.

    The law of Ohio required the defendant to provide rules for the protection of the plaintiff when at such work as he was engaged in at the time. Railway Co. v. Lavalley, 36 Ohio St., 221; Railway Co. v. Murphy, Admr., 50 Ohio St., 135.
    The law of this state also required the plaintiff to obey such rules when brought to his notice, and if - injured through failure to obey them he should not recover. Wolsey v. Railroad Co., 33 Ohio St., 227.
    This disobedience of rules is uniformly held per se negligence preventing recovery. Railway

      Co. v. Craig, 73 Fed. Rep., 642, 80 Fed. Rep., 488; Railroad Co. v. Kane, 118 Fed. Rep., 223.
    All this to be sure, is familiar and undisputed law, and was admitted as such in the courts below.
    Under the following authorities it seems to be clearly the law that even if Whelan had been the admitted superior of Ropp and had distinctly ordered him to go to work without the protection required by the rule being provided, yet Ropp could not recover, for the reason that Whelan did not have authority to suspend or abrogate a rule of the master which pressed as much upon Whelan as upon Ropp himself. Railroad Co. v. Findlay, 63 Fed. Rep., 228.
    Can it be thought for one moment that it was within the scope of the agency of Whelan, an inspector and car repairer, next to if not at the very base of the organization of the defendant’s employes, to cancel or suspend a rule provided by the company for the government of Ropp, which required him to see for himself that he was protected by flags? Railway Co. v. Reesman, 60 Fed. Rep., 370; Russell v. Railroad Co., 47 Fed. Rep., 204; Railroad Co. v. Roach, 110 Ala., 266; Railroad Co. v. Rush, 71 Miss., 987; Keenan et al. Admx., v. Railroad Co., 145 N. Y., 101.
    Ropp was guilty of such contributory negligence that wholly irrespective of the rule we have thus far considered, he should not recover in this action. Stratton v. Railroad Co., 95 Ill., 25.

      Messrs. Franks & Franks and Messrs. Mc-Conica & Dwiggins, for’ defendant in error.
    The first question properly submitted to the jury by the trial court, was whether or not Whalen was Ropp’s superior.

      Whatever may be the rule in other cases and in other jurisdictions, for determining who are and who are not fellow servants, the subject as to railroad employees in this state is regulated by statute. Section 3365-22, Revised Statutes.
    Whether or not Whalen had power or authority to “direct or control” Ropp, was a question of fact to be submitted to the jury under proper instruction. Railroad Co. v. Margrat, 51 Ohio St., 130.
    We think the evidence upon the question of the relation of Whalen and Ropp clearly establishes the proposition that Whalen had the right to direct and control Ropp in his work.
    It is the well established rule in this country, that an employer is bound to exercise ordinary care to give his employe a reasonably safe place to work, and to furnish him reasonably safe appliances with which to do his work, and when such employe is engaged in the performance of his-duty, it is the duty of the employer to exercise ordinary care to see that no injury is done to him. Railway Co. v. Lavalley, 36 Ohio St., 221.
    . • This case aside from the claim of contributory negligence made by the defendant is, we think in all respects a parallel one to the case at bar. Railway Co. v. Henderson, 37 Ohio St., 549; Dick v. Railroad Co., 38 Ohio St., 389; Railway Co. v. Roe, Admr., 15 Cir. Dec., 628.
    The latter case was recently affirmed by this court.
    Numerous other authorities might be cited, in support of this general proposition, but it is so genérally understood and acknowledged as to render the citation of other authorities superfluous.
    That the railroad company, is responsible for the negligence of a foreman is well settled by: Stone Co. v. Kraft, 31 Ohio St., 287; Railway Co. v. Ranney, 37 Ohio St., 665.
    'We contend that Railway Co. v. Reesman, 60 Fed. Rep., 270, is sharply in point as supporting one of the propositions that we are contending for, to-wit: That if Ropp were acting in obedience to a direct command from his immediate superior he will be relieved from the consequences naturally following the willful and wanton violation of the known rule of the company. Russell v. Railroad Co., 47 Fed. Rep., 204; Gleason v. Railway Co., 73 Fed. Rep., 647.
    We desire in connection with the above cited cases and others cited by plaintiff in error, to call the court’s attention to the distinction between the rule as to fellow servants and the authority of superiors, vice principals, etc., as applied by the federal courts, and the rule recognized by the courts of Ohio. In this state we understand, an employe whose duties constitute him a superior within the meaning of the statute, hereinbefore referred to, defining who are and who are not fellow servants, becomes the alter ego of the company so far as his authority to give orders to the one immediately under his direction and control is concerned, and such orders and directions are as binding on and as much a protection to such immediate subordinate as though given by a superintendent, or other officer of the company.
    We insist if the rule was knowingly violated by the plaintiff the direct order of Whalen, his superior, and the circumstances surrounding the transaction, would relieve him from the charge-of contributory negligence. 20 Am. & Eng. Ency.Law, 2d Ed., 138, 147; Railway Co. v. Brown, 56 Fed. Rep. 804; Thompson, Admr., v. Railway Co., 14 Fed. Rep., 564; McKune v. Railroad Co., 17 Am. & Eng. Railroad Cases, 589; Railway Co. v. DeBray, 71 Ga., 406; Railway Co. v. McLallen, Admr., 84 Ill., 109; Norris v. Railway Co., 88 Ill. App., 614; Car Co. v. Parker, 100 Ind., 181; Newbury v. Lumber & Mfg. Co., 100 Ia., 4413 Crowley v. Cutting et al., 165 Mass., 436; Schlacker, Admr., v. Mining Co., 89 Mich., 253; Halliburton v. Railroad Co. 58 Mo. App., 27; Shortel v. City of St. Joseph, 104 Mo., 114; Smith v. Railroad Co., 72 Plun, 545; Lofrano v. Water Co., 55 Hun, 452; Brown v. Railway Co., 10 Cir. Dec., 278; Tagg v. McGeorge et al., Exrs., 155. Pa. St., 368; Stackman v. Railway Co., 80 Wis., 428; 48 L. R. A., 753; 53 L. R. A., 877; 58 L. R. A., 237; Engine Co. v. Schelies, 61 Ohio St., 298; Herdler v. Stove & Range Co., 136 Mo., 3; Moore v. Railway Co., 85 Mo., 588.
    While in case at bar, there was no express promise on the part of Whalen to protect the plaintiff from injury while under the car, his acts and all circumstances surrounding the transaction present as strong a case in favor of the presumption, that the necessary protection had been taken, as was presented in that case, that the necessary precautions would be taken, and if the servant was excusable for' the violation of a rule, in the case cited, he would be excusable in the case we are considering.
    .Counsel further cited and commented upon the following authorities: Mason v. Railroad Co., 111 N. C., 482; Peterson v. Railway Co., 67 Mich., 102; Improvement Co. v. Munson, 14 Wall., 442; Rail

      road Co. v. Hambleton, 40 Ohio St., 496; Canon, Admr., v. Railway Co., 101 Ia., 613; Taylor v. Railroad Co., 121 Ind., 124; Coal Co. v. Estievenard, 53 Ohio St., 43; Railway Co. v. Gilbert, 2 C. C., N. S., 432; Village of Monroeville v. Root, 54 Ohio St., 523.
   Davis, J.

We assume that Whalen was .not a fellow servant with the plaintiff and .that the plaintiff was actually under the direction and control of Whalen in doing the work on which the plaintiff was engaged at the time he was injured, since the jury must have so found under the instructions of the court. It is a conceded fact, however, that the plaintiff entered into employment with the defendant under a written contract or statement to the effect that he had read and understood certain rules of the defendant relating to such-employment and that he would obey them. One of those rules provided that car inspectors “are required to be fully conversant with the rules governing interchange of cars and inspect cars in accordance with the same and with instructions issued by the superintendent of motive power,” and “when inspecting and repairing cars that should not be, moved, they must protect themselves by placing conspicuously a blue signal at both ends of the car, as provided in rule 36.” Another rule requires that “car repairers report to and receive their instructions from the foreman of car repairers under the authority of the master mechanic;” and “they are required in all cases when doing work on or under the cars which should not be moved, to see for themselves that a blue flag by day, or a blue light by night, is placed at each end of - the car, upon which they are working.” The rule 36, which has been referred to, reads as follows: “A blue flag by day and a blue light by night, placed on the end of a car denotes that car inspectors or car repairers are at work under or about the car or train. The car or train thus protected must not be coupled to or moved, until the blue signal is moved by the car inspectors or car _ repairers.”

. It is a humane requirement of the law that railroad companies shall make such reasonable rules and regulations as will tend to minimize accidents in the conduct of their hazardous business. The rules in question not only put it in the power of car inspectors or car repairers to absolutely safeguard themselves when at work under or about a car or train of cars; but it is made the imperative duty of engineers and trainmen to respect the signals. The car or train which carries a blue signal is “protected” and “it must not be coupled to or moved.” The rules are therefore fair and reasonable; and indeed they impose on the railroad operatives no more than ordinary care in the preservation of life and the prevention of injuries.

The stipulation in the contract of employment that the plaintiff would obey these rules and “see for himself” that the signals required for his protection were displayed, is not void as against public policy; because it does not exempt the railroad company from liability, or limit its liability, for the consequences of its own negligence. Pennsylvania Co. v. Shearer, 75 Ohio St., 249. It is no more and no less than what it purports to be, a reasonable condition in the contract of employment that the employe will- faithfully observe the rules which are essential to his own safety.

The plaintiff in this case admits that with full knowledge of the purport of the rules, he signed a written promise to obey the rules, which required him “in all cases,” when at work on or under a car which should not be moved, “to see for himself” that the proper signals were “conspicuously” displayed. He admits that at the time he was hurt he and Whalen did not “see for themselves” that the signals were placed as required by the rules; and that in consequence of that omission, although the contractual obligation may have been on both of them and upon one as much as the other, he was injured. But he claims, and the jury was so instructed by the court, that because of the presence of a superior, Whalen,, whose duty to likewise observe the rules is undisputed, and because Whalen had directed the plaintiff where to work and what to do, the plaintiff is entitled to recover, if he “proceeded to do the work under ■such conditions and circumstances as gave him to understand, and the right to understand, in face of the rules requiring him to place a blue flag at either end of the cars that such flags had been so placed by Whalen.” In other words, although he had not been told by Whalen to disregard the rule and although he had not looked to see if the signals were placed and nothing had been said on the subject, he had the right, when called by Whalen to come and help him on the repairs on which Whalen was working,- to take it for granted that Whalen had done his duty, or to infer from Whalen’s conduct and surrounding circumstances, that the rule was suspended for the time being.

This theory of the case does not seem to us to be tenable. For aught that appears the rules were equally obligatory on both Whalen and the plaintiff. They certainly were binding on the plaintiff and the violation of the rules by Whalen, whether he were a superior or not, could not release the plaintiff from his contractual obligation, which was made for the benefit of both himself and his employer. Nor could Whalen either expressly or impliedly' suspend the operation of any rule for a single .moment. It does not appear in the record, and is not to be presumed, that he had any authority from the company to make contracts or enact rules for it; and if he had no authority to make them, he had no authority to break them, or to disregard, abrogate, suspend or repeal them. Neither can such authority be implied from the fact that Whalen had authority to direct and control the plaintiff in the performance of his duties as a car repairer. His authority to control and direct was authority to control and direct within the limitations of the rules prescribed by the Company for the government of all employes. The rules required that car inspectors should “be fully conversant * * * with instructions issued by the superintendent of motive power” and that “when inspecting and repairing cars that should' not be moved, they must protect themselves by placing conspicuously a blue signal, * * * as .provided in rule 36.” Both Whalen and the plaintiff therefore must have known that rule 378 made it imperative to put out the signals “in all cases when doing work on or under cars which should not be moved.” There is no room here f.or misunderstanding or implication. The rule is to apply in all cases, and therefore neither had Whalen the right to waive the rule in any case nor had the plaintiff any right to infer a waiver of it in any case. There is not even room for an argument from the necessity of the case; for the plaintiff could have obeyed the order of his superior and still have protected himself from injury by obeying the rule. He chose rather to take the chances in the performance of a little task which probably would take less time than would be consumed in putting the blue flags at each end of the cut of cars.- It was a plain assumption of the risk by the plaintiff, in the sense of taking the chances, a risk which he had expressly agreed with his employer that he would not take. Richmond & Danville Railroad Co. v. Finley, 63 Fed. Rep., 228, 231. It was said by Brewer, J., in Atchison, T. & S. F. R. Co. v. Reesman, 60 Fed. Rep., 370, 378, that, “The question is not one of obedience to orders, but of a compliance with rules; and, generally speaking, the duty of compliance is not waived by the mere fact that some controlling official has knowledge of the failure to comply.”

A different result might be reached if there were an. habitual violation of the rule, with knowledge thereof and acquiescence therein by such officers of the company as are authorized to act in its behalf in the making and changing of rules; but such a state of facts is expressly disclaimed in this case.

The views which we have here expressed are strongly supported in York, Admr., v. C. M. & St. P. Ry. Co., 98 Ia., 544, in which an engineer disobeyed a rule in obeying the conductor’s signal to start the train and was injured; in Rich mond & Danville Railroad Co. v. Rush, 71 Miss., 987, in which a brakeman was injured through breach of a rule while obeying an order of the conductor; in a similar case in Russell v. Richmond & Danville Railroad Co., 47 Fed. Rep., 204; in Atchison, T. & S. F. R. Co. v. Reesman, 60 Fed. Rep., 370, involving the violation of a rule with knowledge and assent of the conductor, in Richmond & Danville Railroad Co. v. Finley, 63 Fed. Rep., 228, where there was a violation of a rule' in obedience to order of engineer or conductor; and in Alabama Great Southern R. R. Co. v. Roach, no Ala., 266.

The defendant in error invokes the authority of Van Duzen Gas & Gasoline Engine Co. v. Schelies, 61 Ohio St., 298. We do not regard that case as controlling upon the facts here presented. Cincinnati Gas & Electric Co. v. Johnston, 76 Ohio St., 119.

The court of common pleas erred in refusing to direct a verdict for the defendant on the undisputed facts and the circuit court erred in affirming the judgment of the court of common pleas. The judgments of both courts are

Reversed and Judgment rendered for Plaintiff in Error.

Shauck, C. J., Crew and Spear, JJ., concur.