author: Burket, C. J.

text:
    Chapman, Treasurer of Lorain County, v. The First National Bank.

      Taxation — •National Bank shares — Holder of must pay tax on assessed value — No deduction of debts.

    In the administration of our tax laws, the holder of national bank shares has no right under the statutes, state and national, to deduct his legal bona fide debts from the value of such shares, but he is leg'ally bound to pay tax upon the assessed value of such shares without deduction on account of such debts. Niles v. Shaw, 50 Ohio St., 370, followed and approved.
    (Decided April 27, 1897.)
    Error to the Circuit Court of Lorain county.
    The First National Bank of Wellington, plaintiff below, filed its petition against H. P. Chapman, county treasurer, seeking to enjoin the collection of $933.50 of taxes on the value of 390 shares of stock in said bank owned and held by eight of its stockholders.
    The bank averred that its cashier had made the proper return to the county auditor for the year 1893, and with said return had filed the affidavits of said eight stockholders that their debts amounted to more than their credits and bank shares combined, and that they should be allowed to deduct their debts from said shares, and that they should not be taxed on said shares. The bank further averred that the auditor refused to allow them to deduct their debts from the value of the bank shares, and taxed them upon said shares for the assessed value thereof without deduction of debts, and that the tax so assessed on said shares amounted to the sum of $933.50.
    The petition of the bank further avers that the county treasurer is about to proceed and enforce collection of said taxes against said eight stockholders by such process as is authorized by the laws of Ohio, including section 2839 of the Revised Statutes of this state, which is set out in full.
    The petition also sets out' so much of section 2730, Revised Statutes, as defines the term “credits,” and avers that all unincorporated banks and banking companies, and private individuals of said state engaged in banking, are expressly authorized by the statute of Ohio to deduct their bona fide debts from all their legal claims and demands.
    This last averment is denied by the answer of the treasurer.
    The petition also avers that a large amount of moneyed capital in the hands of individual citizens of the state and of said county of Lorain, invested in promissory notes and other legal obligations, secureties, claims and demands, is, by the aforesaid provision, allowing a deduction of legal bona fide debts to be made therefrom, expressly exempted from taxation, thereby making an unjust and unlawful discrimination against moneyed capital invested in national bank shares, as to which no exemption or deduction is provided for by the laws of the state, which discrimination is in direct violation of the restrictions of said section 5219 of the Revised Statutes of the United States, which provides that:
    “The taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state.”
    The correctness of so much of the act of congress as is here set out is admitted, but the remainder of the averment is denied by the answer of the treasurer. An issue being joined on some other matters, a trial was had in the court of common pleas, and that court stated its conclusions of fact and law separately, as follows:

      u First — Plaintiff is a national banking association, incorporated under and by virtue of an act of congress, entitled ‘An act to provide for the national currency, secured by pledge of United States bonds, and to provide for the circulation and redemption thereof.’ Approved June 3d, 1864, and the amendments thereof, and is established and doing business in the village of Wellington, county of Lorain, and state of Ohio.
    “ Second — The defendant is the duly elected and qualified treasurer of the county of Lorain, and state of Ohio.
    “ Third — The plaintiff has a capital stock of $100,000, divided into 1,000 shares of $100 each, all of which are fully paid up, and certificates for the shares are outstanding and owned by a large number of persons.

      u Fourth — That in accordance with section 2765 of the Revised Statutes of Ohio, then and now in force, the cashier of plaintiff duly reported in duplicate to the auditor of said county the resources and liabilities of said banking association, at the close of business on the Wednesday next, preceding the second Monday of May, 1893, together with a full statement of the names and residences of the shareholders therein, with the number of shares held by each, and the par value thereof, as required by said section; that included in said return so made by said cashier, was the real estate owned by the plaintiff, valued at $3,420, separately assessed and charged on the tax duplicate of said county; that thereupon said auditor proceeded as required by section 2766 of the Revised Statutes of Ohio, to fix the total value of said shares according to their true value in money, and' fixed the same at $74,710.00, exclusive of the assessed value of plaintiff’s real estate, and made out and transmitted to the annual hoard of equalization of incorporated banks a copy of the report so made by said cashier, together with the valuation of such shares as was fixed by said auditor; that said state board of equalization, acting under sections 2808 and 2809 of the Revised Statutes of Ohio, did examine the return aforesaid, made by said cashier to said county auditor, and the value of such shares as fixed by said county auditor, and did equalize said shares to their true value in money, and fixed the valuation thereof at $74,710, exclusive of the assessed value of plaintiff’s real estate; and the auditor of said state did certify said valuation to the auditor of said county of Lorain, which said auditor of said county did enter upon the tax duplicate of said county for the year 1893.
    ‘ '■Fifth — That the following named stockholders of said bank were on the said day next preceding the second Monday of April, 1893, the owners of the number of shares of stock of said bank set opposite their respective names, to-wit:
    ,S. S. Warner........ .150 shares.
    R. A. Horr............. ...10 shares.
    W. Cushion, Jr. ...50 shares.
    C. W. Horr........... .120 shares.
    O. P. Chapman... ...10 shares.
    E. P. Webster.. ...10 shares.
    W. R. Wean........ ...20 shares.
    S. K. Laundon... .120 shares.
    “That said shares were valued by said state board of equalization for the year 1893, at $36,607.-90 and certified by said board to tbe auditor of Lorain county as the taxable value of the same ; that the rate of taxation for all tax assessed and collected for the year 1893, within said county and village, was $0.0255 on the dollar’s valuation, and amounted on said value of said shares to $933.50.

      “Sixth — That on said day next preceding said second Monday of April, 1893, and at the time the cashier of said banking association made return to the auditor of said county of the names and residences of the shareholders of said association, with the numbers and par value of the shares of capital stock of said banking association for the year of 1893, to wit: Between the first and second Mondays of May of said jrear, each of said above named shareholders was indebted and owing to others of legal bona fide debts a sum in excess of the credits, from which under the laws of Ohio, he was entitled to deduct said debts to an amount equal to the value of said shares. That proof of said indebtedness was duly made to said auditor by the share holders aforesaid at the time that the valuation of said shares of stock was so fixed by him, and that said auditor refused to allow the deduction of any indebtedness of said shareholders from the valué of said shares, as so fixed by said board of equalization, and the auditor of said county carried upon the duplicate delivered to the treasurer, the entire valuation of said shares so made without allowing any deductions therefrom, by reason of any bona fide indebtedness of said shareholders to others, from the valuation so fixed by said board of equalization.
    “ Seventh — That the plaintiff tendered to said treasurer of Lorain county on the 28th day of December, 1893, and offered to pay to said treasurer the sum of $485.80, if he would receive the same in full for the tax assessed upon the valuation of the shares of stock owned hy the shareholders named in the petition for the entire year of 1893, and said treasurer refused to accept the same, and said treasurer intends, if not enjoined by this court, to use all lawful means for the collection of said tax so assessed upon the valuation of said shares of stock.
    “And as its conclusions of. law upon the above found facts, the court find that the plaintiff is not entitled to an injunction, as prayed for in the petition, and that said petition should be dismissed. To which conclusions of law the plaintiff excepts.
    “It is therefore considered, adjudged and decreed hy the court that the petition he dismissed ; that the said defendant go hence without day, and that defendant recover from the plaintiff his costs herein, taxed at $--, to which judgment and de-
    cree the plaintiff excepts.”
    The bank filed a petition in error in the circuit court of the county, and that court upon this finding of facts reversed the judgment, and proceeding to render such judgment upon said facts as in the opinion of the circuit court the court of common pleas should have rendered, it rendered a final judgment enjoining- the treasurer from collecting said taxes or any part thereof.
    Thereupon the treasurer filed his petition in error in this court seeking to reverse the judgment of the circuit court, and as a result having the judgment of the common pleas affirmed.

      E. G. Johnson, for treasurer.

      F. 8. Monnett, Attorney General, for the state.

      Boynton <& Ilorr, for the bank.

      The points made by the counsel and the cases cited are sufficiently indicated in the opinion — Reporter.
   Burket, C. J.

Two questions arise in this case. First — Whether in the administration of our tax laws in this state, the holder of shares in a national bank has the right, under the statutes, state and national, to deduct his legal bona fide debts from the value of such shares, and to be taxed only upon the remainder, or must he pay taxes on the assessed value of such shares without a deduction of such debts? Second — Has the defendant in error by the record in this case, shown itself entitled to enforce such deduction for its said shareholders? The determination of these questions in this case, must depend upon the record, and the law property applicable thereto.

These are federal questions, and can only be finally and authoritatively determined by the Supreme Court of the United States. They will both be considered together.

Sections 2730 and 2737, Revised Statutes of this-state, contain most of the statute law of the state bearing- on the subject. They are as follows:

Section 2730. In this title, the terms “real property” and “land” shall be held to mean and include not only land itself, whether laid out in town lots or otherwise, with ail things contained therein, . but also, unless otherwise specified, all buildings, structures, and improvements, and fixtures of whatever kind thereon, and all rights and privileges belonging, or in anj^wise appertaining thereto; the terms “investment in bonds,’’shall be held to mean and include all moneys in bonds, or certificates of indebtedness, or other evidences of indebtedness of whatever kind, whether issued by incorporated or unincorporated companies, towns, cities, villages, townships, counties, states or other incorporations, or by the United States, held by persons residing in this state, whether for themselves or others; the terms “investments in stocks,” shall be held to mean and include all moneys invested in the capital or stock of any association, corporation, joint stock company, or other company, the capital or stock of which is or may be divided into shares, which are transferable by each owner without the consent of the other partners or stockholders, for the taxation of which no special provision is made by law, held by persons residing in this state, either for themselves or others; the terms “personal property,” shall be held to mean and include, first, every tangible thing being- the subject - of ownership, whether animate or inanimate, other than money, and not forming part of any parcel of real property, as hereinbefore defined; second, the capital stock, undivided profits, and all other means not .forming part of the capital stock of every company, whether incorporated or unincorporated, and every share, portion or interest in such stock, profits or means, by whatsoever name the same may be designated, inclusive of every share or portion, right or interest, either legal or1 equitable, in and to every ship, vessel or boat, of whatsoever name or description, used or designed to be used either exclusively or partially in navigating any of the waters within or bordering on this state, ■ whether such ship, vessel, or boat, shall be within the jurisdiction of this state or elsewhere, and whether the same shall have been enrolled, registered, or licensed at any collector’s office, or within any collection district in this state or not; third, the money loaned on pledge or-mortgage of real estate, although a deed or other instrument may have been given for the same, if between the parties the same is considered as security merely the term “money” or moneys,” shall be held to mean and include any surplus or undivided profits held by societies for savings or banks having’ no capital stock, gold and silver coin, bank notes of solvent banks, in .actual possession, and every deposit which the person owning, holding in trust, or having the beneficial interest therein, is entitled to withdraw, in money on demand; the term “credits,” shall be held to mean the excess of the sum of all legal claims and demands, whether for money or other valuable thing, or for labor or service due. or to become due to the person liable to pay taxes thereon, including deposits in banks or with persons in or out of the’ state, other than such as are held to be money, as herein before defined, when added together (estimating every such claim or demand at its true value in money), over and above the sum of legal tona fide debts owing by such person; but in making up the sum of such debts owing, there shall be taken into account no obligation to any mutual insurance company, nor any unpaid subscription to the capital stock of any joint stock company, nor any subscription for any religious, scientific, literary, or charitable purpose; nor any acknowledgment of any indebtedness, unless founded on some consideration actually received, and believed at the time of making such acknowledgment to be a full consideration therefor; nor any acknowledgment made fqr the purpose of diminishing the amount of credits to be listed for taxation; nor any greater amount or portion of any liability as surety, than the person required to make the statement of such credits believes that such surety is in equity bound, and will be compelled to pay, or contribute, in case there be no securities! provided, that pensions receivable from the United States shall not be held to be credits ; and no person shall be required to take into account in making up the amount of credits, a greater portion of any credits than he believes will be received or can be collected, or any greater portion of any obligation given to secure the payment of rent than the amount that shall have accrued on any lease and remain unpaid; words importing the masculine gender shall apply to females also, and the word ‘person’ or ‘party, ’ or other word importing the singular number, shall be held to include firms, companies, associations, and corporations; and all the words in the plural number shall apply to single individuals also, in all cases in. which the spirit and intent may require.”

Section 2737. Such statements shall truly and distinctly set forth, first, the number of horses, and the value thereof; second, the number of neat cattle, and the value thereof; fourth, the number of sheep, and the value thereof; sixth, the number of pleasure carriag’es (of whatever kind), and the value thereof; seventh, the total value of all articles of personal property, not included in the preceding or succeeding classes; eighth, the number of watches, and the value thereof; ninth, the number of pianofortes and organs, and the value thereof; tenth, the average value of the goods and merchandise, which such person is required to list as a merchant; eleventh, the value of the property which such person is required to list asa banker,'broker, or stockjobber; twelfth, the average value of the materials and manufactured articles which such person is required to list as a manufacturer ; thirteenth, • moneys on hand or on deposit subject to order; fourteenth, the amount of credits as hereinbefore defined; fifteenth, the amount of all moneys invested in bonds, stocks, joint stock companies, annuities, or otherwise; sixteenth, the monthly average amount or value, for the time he held or controlled the same, within the preceding year, of all. moneys, credits, or other effects, within that time invested in, or converted into bonds or other securities of the United States or of this state, not taxed, to the extent he may hold or control such bonds or securities on said day preceding the second Monday of April; and any indebtedness created in the purchase of such bonds or securities shall not be deducted from the credits under the fourteenth item of this section; but the person making such' statement may exhibit to. the assessor the property covered by the first nine items of this section, and allow the assessor to affix the value thereof, and in such case the oath of the person making the statement shall be in that regard only that he has fully exhibited the property covered by said nine items, ’ ’

It will be noticed that national bank shares fall within the definition of “investments in stock.” and that they are what is known as “personal property.” It will further be noticed that the surplus and undivided profits of saving societies, and ■ banks having no capital stock, and money on deposit subject to withdrawal on demand, are classed as money and not as credits.

A credit is defined in short to be what is owing to a person, over and above his legal bona fide debts, but in making up what is owing to him he cannot include moneys, bonds, stocks, nor deposits subject to withdrawal on demand; and he cannot deduct as legal tona fide debts an obligation to a mutual insurance company, nor an unpaid subscription to the capital stock of a joint stock company, nor to any religious, scientific, literary or charitable purpose, nor any acknowledgment of any indebtedness unless founded on full consideration, nor an acknowledgment made for the purpose of diminishing the amount of credits to be listed for taxation, nor any g’reater amount as surety than he is likely to be compelled to pay, nor any indebtedness created in the purchase of nontaxable securities.

It will be noticed that there is a large class of indebtedness that cannot be deducted from the credits, and to enable the bank to fairly raise the legal question in this case it should show that the debts sought to be deducted were of the class that our statute allows to be deducted from credits, and that such deductions were generally made by others to an extent that materially affected the said shareholders financially. A mere theoretical discrimination is not sufficient, it must be actual and material.

The petition avers that a large amount of moneyed capital in the hands of individual citizens of said state and county invested in promissory notes, and other legal obligations, t securities, claims and demands, is by allowing a deduction of legal tona fide debts to be made therefrom, exempted from taxation, but this averment is denied in the answer, and the court does not find it to be true.

So that for aught that appears in the finding’s of fact by the court, there was no deduction of debts made from credits, either in the state or county, and the only effort that was made to have such deduction so far as thi^s record shows, was the effort on the part of these eight shareholders, and that was unsuccessful.

The petition avers that “between the first and second Mondays in May of said year, each of said above named shareholders was indebted and owing to others, of legal bona ficle debts, a sum in excess of the credits from which, under the laws of Ohio, he was entitled to deduct said debts to an amount equal to the value of said shares, which said excess of said debts over credits as aforesaid, the said stockholders abovenamed were entitled to have deducted from the assessed value of said shares so severally owned by them, proof of which fact was duly made to said auditor and said state board of equalization by the shareholders at the time that they respectively fixed the valuation of said shares of stock.” This averment does not say that the legal bona fide debts owed by said stockholders and not used as a deduction from credits in making- out their tax lists to the assessor, were not of the class which are not authorized to deduct from the credits, nor that they were of the class which are authorized to be so deducted. The averment is denied by the answer, and this put the bank upon its proof. As a result of such proof the court finds that “between the first and second Mondays of May of said' year, each of said above named shareholders was indebted and owing to others of legal bona fid,e debts a sum in excess of the credits, from which, under the laws of Ohio, he was entitled to deduct said debts to an amount equal to the value of said shares. That proof of said indebtedness was duly made to said auditor by the shareholders aforesaid at the time that the valuation of said shares of stock was so fixed by him, and that said auditor refused to allow the deduction of any indebtedness of said shareholders from the value of said shares, as so fixed by said board of equalization.”

While the court finds that there was an excess of indebtedness over credits to an amount equal to the value of said bank shares, it fails to find that such indebtedness was of the character which is authorized under the statutes of Ohio to be deducted from credits.

This court cannot presume, in the face of this record, that any deductions of debts from credits were made by individual citizens in the year of 1893, nor can it presume that the said debts of said stockholders were of the class, authorized to be deducted from credits. Under our practice, the presumption is, that the court found all the facts which the proof warranted, and facts not found by the court are presumed not to exist. Jones v. Brown, 11 Ohio St., 606 ; Springer v. Avondale, 35 Ohio St., 624.

It is therefore clear that this record fails to bring the debts sought to be deducted, within the class which is authorized to be so deducted.

It appears from said sections 2730 and 2737, that the taxable property of this state is classified as follows: That f roin which no deduction of debts can be made, and that-f rom which certain legal bona fide debts may be deducted. The former consists of real estate, including lands, lots, building's, structures, improvements, fixtures and privileges thereto belonging; and also personal property, such as horses, cattle, mules, asses, sheep, hogs, carriages, wagons, harness, watches, clocks, musical instruments, diamonds, jewelry, goods, merchandise, material used -in manufacturing-, capital employed by a banker, broker, stock-jobber, moneys on hand, or on deposit subject to order, bonds, stocks, shares in joint stock companies, annuities, and all other personal property other than credits, and amounting in the whole state, as shown by the official reports for the year 1893, to over one billion, six hundred and thirty-six million dollars. That from which certain legal bona fide debts may be deducted consists of credits alone, but money on deposit subject to order cannot be counted as a credit, and the credits in the state to taxation in the year 1893, as shown by the official reports, amounted to only one hundred and six million dollars. The amount of debts deducted has not been reported, and is not officially known, but is likely to be small as compared with the credits returned.

In addition to these two classes of taxable property, we have in this state another class which is free from taxation, and which under section 2732 Revised Statutes, consists of property real and personal, used for public schools, public colleges, public academies, public worship, cemeteries, state and United States property, county buildings, poor-houses, public charities, fire departments, markets, public grounds, public halls, soldiers’ monuments, and personal property not exceeding one hundred dollars to each taxpaying individual in the state, and which-exempted property amounts to over one hundred and sixty million dollars in value, as shown by the official reports.

It thus appears that credits from which certain debts may be deducted, form but a small and comparatively insignificant part of our taxable property, and are even less than our nontaxable property.

It is not the amount of credits of which the national bank shareholders complain, but of the amount of debts deducted from credits, and which deductions thereby escape taxation, and increase the taxes on such shareholders. These deductions, whose definite amount is not known, can form but a very small per centum of the total taxable property ; and hence if there is any discrimination against such shareholders, it is only the same discrimination that is suffered by the holders of all kinds of property, other than credits, and even by such holders of credits as owe no debits to be deducted therefrom.

Persons owning- bonds issued by corporations, cities, villages, counties, states or other public bodies, can have no deduction- of debts therefrom. Payne v. Patterson, 37 Ohio St., 121. Neither are owners of stocks, investments in stocks, or joint stock companies, entitled under the laws of this state to deduct debts therefrom. National bank shares are what are known as stocks, or investments in stocks, and there is no act of congress to the contrary, and from such stocks there can be no deduction on account of debts. Niles v. Shato, 50 Ohio St., 370.

But it is said by counsel for the bank, that the question is res adjudicata, and has been determined and settled by the Supreme Court of the United States in Whitbeck v. Mercantile National Bank of Cleveland, 127 U. S., 193.

The part of the syllabus on this subject is as follows:

“The statutes of Ohio regulating assessments for taxation allow an owner of moneyed capital other than shares in a national bank to have a deduction equal to his bona fide indebtedness made from the amount of the assessment of the value of such moneyed capital; but they make no provision for a similar deduction from the assessed value of shares in a national bank, and provide no means by which such a deduction may be obtained. Held : That the owners of such shares are entitled to have a deduction of their indebtedness made from its assessed value as in the case of other moneyed capital.”

That holding was right if the statute of Ohio were as recited. But as already shown, the statutes of Ohio do not allow a deduction equal to the bona fide debts to be made from the amount of the assessments of the value of moneyed capital in general, but only from a small and comparative insignificant amount of moneyed capital called “credits, ” and even from, credits only a certain and limited class of debts. If the court had recited in the syllabus as a predicate for its holding, the provisions of the Ohio statute as they really are, the holding would most likely have been different, •and would have been as in First National Bank of Garnett v. Ayers, 160 U. S., 660, in which the syllabus is as follows :

“The single fact that the statutes of Kansas regulating the assessment and taxation of shares in national banks permit some debts to be deducted from some moneyed capital, but not from that which is invested in the shares of national banks, is not sufficient to show that the amount of moneyed capital in the state of Kansas from which debts may be deducted, as compared with the moneyed capital invested in shares of national banks, is so larg’e and substantial as to amount to an illegal discrimination against national bank shareholders, in violation of the provisions of Revised Statutes, section 5219. ”

No examination of the provision of the Ohio statute by the court is found in the opinion in the Whitbeck case, except as to the procedure in demanding the deduction, and even as to that there is no examination shown by the court, but the finding of the circuit court is accepted as to such provisions.

The sections of the Kansas statute under review in the Ayer’s ease, are almost identical with sections 2730 and 2737 of our own state, and it would seem that the facts being the same, the same construction should obtain as to each.

In the Whitbeck case it is assumed by the court, or at least recited in effect, that the statutes of Ohio are in substance the same as the statutes of New York, and permit a deduction of debts from the total amount of personal property, and Hills v. Exchange Bank, 105 U. S., 319, is cited as authority for the holding-. But turning to that case, we find that the principle upon which it was decided is, that the shareholders were not allowed to deduct their debts from their shares, while other parties were allowed to deduct their debts from the total amount of their personal property,’and the case is founded upon Supervisors v. Stanley, 105 U. S., 305, decided at the same time, and in that case the statute of New York is set out, and shows that the owners of all personal property other than national bank shares, are allowed to deduct their debts from the total amount of their personal property.

If our statute contained that provision, it would be conceded at once that the holders of national bank shares should be accorded the same right; but they contain no such provision, and therefore it seems only proper that the question should again be presented to, and considered by the Supreme Court of the United States.

That no discrimination against national banks was intended by the passage of the Ohio statutes, is conclusively shown by the fact that those statutes were passed long before national banks were created, and have remained the same in substance ever since. No discrimination appears on the face of the statute, and that none is worked out in its execution, will be shown further on.

That the main purpose of congress in fixing limits to taxation on shares in national banks, was to render it impossible for the state to create and foster an unfriendly competition by favoring’ state institutions or individuals in carrying'on a similar business, has been several times held by the Supreme Court of the United States, and seems now to be sett Led. Mercantile Bank v. New York, 121 U. S., 138; First National Bank of Garnett v. Ayers, 160 U. S., 660.

When the laws of a state tax money capital employed in national banking the same as that employed in state banks, it is held that there is no discrimination against national bank capital, unless there is in other respects a clear discrimination in favor of money capital, other than that employed in either state or national banking. Bank v. Ayers, 160 U. S. , 660. But in this state both national and state banks are taxed under the same section, being section 2762, Revised Statutes, and in fixing the value of the shares, the bank deducts its debts from its credits, so that it pays taxes only on the net valuation. Unincorporated banks are taxed in the same manner, by deducting debts from credits, so as to pay only on the net capital stock. By section 2759, in the case of incorporated state banks, after the deduction of debts from the credits are made, and the net value of each share -of stock thus ascertained, the holder of such stock is. compelled to pay taxes upon such value, and is .not permitted to deduct his legal bona fide debts therefrom. In the case of unincorporated banks, when the net value of the capital is ascertained, the bank pays the taxes thereon, and the several owners of the capital are not allowed to deduct any of their debts from their share of such capital. It is thus clear that moneyed capital invested in national banks is placed upon an exact equality with moneyed capital invested in state banks, and this is all that, can be reasonably asked for national banks, in the absence of a showing to the effect that moneyed capital invested in state banks is unreasonably discriminated against. ^ That there is no discrimination against capital invested in state banks, is so clear that no argument is required to establish the fact; and that capital invested in national banks is put upon an exact equality with capital invested in state banks, is equally clear from the sections above referred to. It would therefore seem clear that there is no such discrimination against national bank shares as to give just ground for complaint.

In the case of Davenport Bank v. Davenport, 123 U. S., 83, the Supreme Court of the United States in passing upon this question say in the syllabus :

‘ ‘Section 5219, Revised Statutes, respecting the taxation of national banks, does not require perfect equality between state and national banks, but only that the system of taxation in a state shall not work a discrimination favorable to its own citizens and corporations, and unfavorable to holders of shares of national banks.”
‘ ‘If a state statute creating a system of taxation does not on its face discriminate against national banks, and there is neither evidence of legislative intent to make such discrimination, nor proof that the statute works an actual and material discrimination, there -is no ease'for holding it to be unconstitutional. ”

In Ohio the system of taxation places state and national banks upon an exact equality without discrimination, and in the case at bar there is no proof, and no finding by the court, that the statutes work either an actual or material, discrimination. It is only by giving the. holder of state bank shares all the rights that a holder of national bank shares is allowed, and then after the net value of his bank shares has been so ascertained, taking him out of the class of holder of stocks (from which no deduction of debts can be made), and changing’ his stock into a credit and then placing him into the class of a holder of credits (from which deduction of debts may be made), that there is, even a semblance of discrimination. But this semblance is not shown to be actual, and is certainly not shown to be material, because it does not appear in this record that any others in the county or state deducted debts from credits, and there is no official report from which such fact can be ascertained.

While the official blanks of assessors require each person to give a statement of the total amount of his credits, and then the total amount of his legal bona fide debts, and the balance of credits over debts is carried out as the amount to be taxed, the amount of debts so deducted has not been carried into the official report, and this court has no means of knowing the amount, as no finding was made of such amount by the court of common pleas, and therefore, for the purposes of this case, the fact of such deductions does not exist.

In this case as in the Kansas ease, there is an entire lack of proof on this subject, and in the absence of official records, this court cannot presume that any such deductions were made, and, certainly not to an amount which would make an unlawful discrimination against national bank shares.

To place the holder of national bank shares into the class of bankers, and treat his shares as stocks until the net value is fixed, and then change his stock into a credit, and ta se him out of the class of bankers and place him into the class of private individuals, so as to enable him still further to reduce his stock thus changed into a credit, by deducting therefrom his legal bona fide debts, would be discriminating in favor of such national bank shareholder, and would be giving him two chances to escape taxation, while other bankers and private individuals have but one.

Such a result was certainly not intended by the act of congress in question.

• There are about forty-six million dollars invested in national bank shares in this state, and it is impossible to put such shares upon an exact equality with all other moneyed capital. If classed as credits, which they are not, there will be a discrimination in their favor and against other stocks, bonds and the great body of our taxable property, from which no deductions on .account of debts are allowed. If treated as stocks, which they are, under court classification, there is no discrimination against them as compared with other stocks, and bonds and the great bulk of our taxable property.

To put national bank shares upon an equality with the most favored class of property, would free them from all taxation, as more than one hundred and forty millions in value, of public and other property, is relieved from all taxation in this state, while the whole national bank stock amounts to only forty-six millions.

The question then is, shall national bank shares be placed with the most favored class of property, and not be taxed at all, or shall they be classed as stocks until their net value shall be fixed, and then changed into the class of credits so as to permit their holder to deduct therefrom his legal bona fide debts .and thus be favored above the holders of other stocks, or shall they be classed as mere credits, from the face value of which legal bona fide debts may be deducted, or shall they be regarded and treated as stocks, which they really are, and classed with stocks and bonds and the great body of our other moneyed capital, and be taxable at their true money value without deducting the debts of the owners therefrom, as is provided for all other banks 'and bankers by sections 2759 and 2762 of our statutes, and by section three of article twelve of our constitution?

We think that national bank shares belong to the class known as stocks, and not to the class known as credits, and that such shares cannot have the double advantage of both stocks and credits, and 'that the holders of such shares have no right under the statutes, state and national, to deduct their legal bona fide debts from the assessed value of such shares.

It follows that the judgment of the circuit court must be reversed, and that of the common pleas affirmed.

Judgment accordingly.


source: Caselaw Access Project

author: By the Court:

license: Public Domain

text:
    Martin et al. v. Martin, Admr.

      Personal properly — Law of inheritance — Intestate with neither wife nor child — Rule as to distribution.

    The personal property [of an intestate who leaves neither wife nor child, passes to such of his brothers and sisters as survive him, and to the legal representatives of those who died before him, and children of a pre-deceased brother take in a representative character and subject to the indebtedness of their principal to the intestate.
    (Decided April 27, 1897.)
    Error to the Circuit Court of Brown county.
    The plaintiffs in error brought suit in the court of common pleas alleging, in substance, that the ' defendant is the duly qualified administrator of the estate of' Ezekiel Martin, who had died intestate, and leaving neither wife nor child surviving him; that they are the children of Alexander Martin, who was a brother of Ezekiel, and who had died before Ezekiel; that the estate of said Ezekiel upon his death clecended to his surviving brothers and sisters and the representatives of such of his brothers and sisters as had died before him; that as the representatives of Alexander they, were each entitled to a fourteenth part of the estate of Ezekiel after the payment of his debts, and that the amount due each of them, upon distribution, as the same had been found by the probate court was $467.77, for which they prayed judgment.
    The administrator answered alleging that Alexander in his lifetime became indebted to Ezekiel upon a promissory note less than fifteen years past due, the sum of $1,565.00, no part of which had ever been paid, that Alexander was insolvent, and that said note is a part of the assets of the estate of Ezekiel and praying that its amount with interest be charged against the distributive share of the plaintiffs.
    In the common pleas court a demurrer to the answer was sustained.
    In the circuit court the judgment of the common pleas was reversed.

      IJ. C. Keller and Loudon & Waters for olaintiffs in error.
    The property in question in this case comes from Ezekiel Martin, the intestate, by descent. Descent at common law “is the title whereby a man,on the 'death of his ancestor, acquires his estate by right of representation as hisheiratlaw.” 2 Blackstone Comm.,201. 4 Kent Comm., 374. Descent “is the transmission, of an estate in lands by operation of law, upon the decease of a proprietor, without any disposition thereof having been made by him.” 6 Am. Cyclopedia 38. In the technical sense of the word, only lands descend. Personal estate goes to the executor or administrator. One who takes land by descent is liable for the debts of the person from whom it descends to the value of the property descended. 4 Kent Comm., 420. The definition of “descent” shows that the title vests in the heir at the death of the ancestor.

      Subject to administration on the personal estate of an intestate, the right of the distributee vests at the death of the intestate. Armstrong v. Grandin, 39 Ohio St., 368; Conger, et al. v. Baker's Admr. and Heirs, 11 Ohio St., 1.
    The Revised Statutes of Ohio, title 4, chapter 2, section 4158, regulates the descent of ancestral real estate, and section 4159, that of non-ancestral real estate. In the present' case, whether the real estate of Ezekiel Martin was ancestral or nonancestral is immaterial. His brothers and sisters are all of the whole blood as well as of the blood of the ancestor. By virtue of section 4163, Revised Statutes of Ohio, personal property is to be distributed in the manner prescribed in section 4159, as to nonancestral real property.
    We maintain that the plaintiffs take directly from the intestate, Ezekiel Martin, and not from their father, Alexander Martin. They, the plaintiffs, are the persons in whom the law cast the -descent of the one-seventh part of their Uncle’s (Ezekiel’s) land, and in whom at his, death vested the right of distribution to one-seventh of his personal estate. The title passed from him to them, by his death, encumbered only by his debts. They are his heirs and distributees by force of the statutes ; and they, although nieces, took from their uncle the same title that his brothers and sisters took. An inheritance can not come from one who was never owner of it. The estate of Alexander Martin, father of the plaintiffs in error, had no interest in the property of. Ezekiel, the intestate. Barnum v. Barnwn, 119 Mo.,63 (24 S. W. Rep. 780). Gopenhaven v. Gopenhaven, 78Mo., 58.108 Mass., 382.
    That plaintiffs inherited directly from their uncle, the intestate, and not from or through their father, see Kendall v. Mendell, et al., 67 Maryland, 444 ; Esterly’s Appeal, 109 Penn., 222; Woerner on Administration, section 71, p. 149; Ilganfritz Appeal, 5 Watts. (Pa.), 25; Carson v. Carson, exr., 1 Metcalf (Ky.,) 300.
    The words “legal representatives” as used in our statute of Descent and Distribution, are descriptive of a class of persons who take directly from the intestate. The words of the statute governing this case are, uto their legal regyi'esentativesBy the very terms of the statute the property of the intestate, • Ezekiel Martin, passed to two classes of persons ; the first of which was composed of his surviving brothers and sisters; and the’second'of which was composed of the legal representatives' — that is to say, the children — of his brothers who had predeceased him. But both these classes take directly from the intestate.
    Section 4174 has been thrice amended, and in its various forms has received frequent judicial construction. 8 Ohio 289; 11 Ohio St., 131; 19Ohio St., 22; 4 Ohio St., 354.
    In determining the degrees of consanguinity we follow the civil law. Clayton v. Drake, 17 Ohio St. 367.
    In connection with the proposition hereinbefore stated, and as showing the rule of the civil law in eases like the one we are considering, we refer to Gaius Institutes. . (Tomkins & Lemon Ed., 1869.) Com. 2, Sec. 156; Com. 3, Sec. 7; Com. 3, Sec. 17, note; Com. 3, Sec. 32, note; JustiniansInstitutes; Liber 2, Title 19, Secs. 1 and 2; Liber 3, Title 1, Sec. 6; Liber 3, Title 2, Secs. 2, 3 and 4. Also 118 Novella; 127 Novella.

      Virio .Slocme and Bambach <& Sou, for defendant in error.
    .The question is: Can the indebtedness of Alexander Martin, the father of plaintiffs, to the intestate, under the facts of this case, be charged against the distributive share of the plaintiffs in Ezekia Martin’s, estate? We contend that it should be so charged. The question rests ultimately on the construction, to be given to Chap. 2, Title 4, Part 2 of the Revised Statutes. Sections 4158 et seq„
    The first law in this state regulating the distribution of persona] estates was the act adopted by the Governor and Judges under the Ordinance of 1787, from the Pennsylvania Statute on June 16, 1795, (1 Chase Chap. 50, page 164, sec. 4) The next Act provided that such residue shall be distributed agreeably to the Act entitled, “An Act regulating’ the course of descent and distribution of personal estates, without otherwise designating such act. 1 Chase, Chap. 83, Page 498. The next Act was passed by the Third General Assembly Eeb. 22, 1805. 1 Chase, Chap. 109, page 515.
    The law remained substantially as in this act so far as non-aneestral property, and the 10th and 15th sections of said Act are concerned, until the passage of the Act of March 14, 1853, (3 Curw. chap. 1305, page 2270). For the various Acts intervening, if the Court desires to verify this statement see 2 Chase, chap. 329, page 854; 2 Chase, 356, page 906; 2 Chase, chap. 590, page 1313; 3 Chase, chap. 843, page 1789; (3 Curw. chap. 1305, page 2270.) In this last Act the provisions of sections 10 and 15 df the Act of February 22, 1805, which had been retained in each subsequent Act, were omitted and in their place were enacted sections 5, 6, 7, 8, and 9, (3 Curw. page 2272), which are now sections 4163 to 4168 inch of the Revised Statutes. Ewers v. Fctllin (9 Ohio St., 327).
    Now, what are the legal rights, what, in view of this legislation is the proper legal status of “a legal representative?”
    As early as the territorial Act, the inheritance is east upon “the next kindred of the intestate, who are in equal degree, and those who legally represent them,” i. e. the next kindred in equal degree.- — The Act of February 22, 1805, (sec. 10) defines explicitly how the estate shall descend where all the heirs are in an equal degree of consanguinity, a,nd where some are further removed; and, probably, to remove all doubt as to the meaning’ of the latin phrases per cepita and per stirpes, this Act defines the former by adding “that is to say by persons, ” and the latter “that is to say, the share of their deceased parents.”
    Descents, as regards pedigree or consanguinity, are either immediate or mediate,
    Where the heir takes per capita, or, as the first statute defined it, “by persons,” by designation or nomination the descent is immediate. When the heir takes per stirpes, or by right of representation, the descent is mediate. In the former case the heir takes direct from the intestate; in the latter he takes mediately through the stirpes. Levi v. Mc-Cartee, 6 Pet., 102; Collingwood v. Pace (1 Vent. 413).
    As sustaining our view we cite: Pa/rsons v. Parsons, 52 Ohio St., 470; Dutoit v. Doyle, 16 Ohio St., 406 ; Levi v. Me Cartee, 6 Pet., 102; Ernest v. Ernest, 5 Rawle, 213; Me donkey v. Me Coñkey, 9 Watts, 352 Gi/ra/rdv. Wilson, 57 Pa. St., 182; Hughes ’Appeal, ib
      179; Person’s Appeal, 74 Pa. St., 121; Easterly’s Appeal, 109 Pa. St., 222; Smith v. Smith, 59 Me. 214 ; Quarlesv. Quarles, 4 Mass. 680; Proctor v.Weiohall, 17 Mass.,81; Hancock v. Hubbard, 19Pick. 167; Dear-born v. Prestori, 7 Allen 192; Simpson v. Simpson, 114 111. 603; Brown v. Taylor, 62 Ind. 295; Destraban v. Destrahan, 4 Mart. N. S. 557; Calhoun v. Cross-grave, 33 La. An. 1001; Denise v. Denise, 37 N. J. Eq. 163; Smith v. Kearney, 2 Barb. Cb. 533 ; Wilson v. Kelly, 16 S. C. 216; Woerner’s Am. Law of Adm. sections 71, 435, 554.
   By the Court:

By tbe terms of section 4163, Revised Statutes, the personal property of an intestate is tobe distributed in the manner prescribed in section 4159, which relates to nonancestral real estate. The third paragraph of the section lastly named governs the case. It provides: “If such intestate leaves no husband or wife, relict to himself or herself, the estate shall pass to the brothers and sisters of the intestate of the whole blood, and their legal representatives. ’ ’ The plaintiffs in error, not being of the next to kin to the intestate, are entitled to share in the estate only by favor of the last clause of the paragraph, which admits them as “legal representatives” of their deceased father, Alexander, who, if he had survived, would have been of the next of kin. It is admitted that if Alexander had survived the intestate, and had brought suit for the distributive share now demanded by his representatives, the answer would have been good. Prom the representative character in which the.plaintiffs, are admitted to to participate with their uncles and aunts it results that they participate subject to the burdens which the law would have imposed upon their principal. Dutoit v. Doyle, 16 Ohio St., 400; Parsons v. Parsons, 52 Ohio St., 470; Hughes’ Appeal, 57 Pa. St., 179. Woerners’ Admr. section 554.

The conclusion reached in Parsons v. Parsons must be regarded as justifying the judgment of the circuit court in this case, unless the representatives of the principal who owed a debt to the intestate occupy a more favorable position than those of one who has received an advancement from him.

Judgment affirmed.


author: Williams, J.

text:
    The State v. Meyers.

      Statute defining crime — Not extended to persons not within its terms —Section 6841. — Construction of statutes.'
    1. A statute defining a crime or offense cannot be extended, by construction, to persons or things not within its descriptive terms, though they appear to be within the reason and spirit of the statute.
    2. Section 6841, of the Revised Statutes, applies only to persons who are charged by law with the performance of the duties therein mentioned; and a deputy county treasurer is not within its provisions, nor subject to indictment thereunder
    (Decided May 11, 1897.)
    Exceptions by the Prosecuting Attorney to the decision of the Court of Common Pleas of Stark county.
    A statement of the exceptions, and of the grounds on which they are based, is contained in the opinion.

      Charles C. Bow, Prosecting Attorney, in support of the exceptions.

      Tlie Legislature of the State in 1892 recognized the deputy treasure]1 as a public officer, and provided in Section 1117, Volume 89 of the Ohio Laws, for the payment of such deputy’s salary out of the county treasury, and provided further that such salary should be fixed by the county commissioners. See sections 1089, 4949, 10, and 1090, Revised Statutes of Ohio.
    While the question does not turn solely upon the point as to whether or not a deputy treasurer is a public officer within the meaning of the law, for the statute says “whoever,” yet if he is a public officer within the meaning of the law, then under the sections of the statute above referred to he is certainly charged with the custody, etc., of the public fund. And if by virtue of his position he appropriates this fund to his own use he is guilty of embezzlement as charged in the first seventy-four counts of said indictment. Upon this question we desire to call the attention of the court to the 6th American and English Encyclopaedia of Law, page 490. 42 Texas, 63; 19 American and English En-cyclopaedia of Law, 383; 36 Mass., 273; 72 Am. Dec., 169; 41 Iowa,, 593; 10 Michigan, 54; 11 New York, 392; 62 Am. Dec., 120; 86 Penn. St., 416; 74 Pa. St., 174; 70 North Carolina, 93; 2nd Ben (U. S.), 356.
    No question is- raised as to the form of this indictment; no question is raised upon the court’s right to direct the prosecutor to elect upon which count he would go to trial, the sole and only question presented is, can a deputy treasurer who assumes to perform the duties of his superior be indicted for the crime of embezzlement under the laws of the State of Ohio.

      William B. Day, argued against the exceptions.
    Sections 6841 and 7299 provide for the offense of embezzlement, its prosecution and punishment, where the embezzlement is by an officer or other person charged with the collection, receipt, transfer, disbursement or safe-keeping of the public money, and, it is provided in the last named section that it shall be sufficient evidence for the purpose of showing a balance against him, to produce a transcript from the books of the auditor of the state, or the auditor of the county ; and the refusal of any such officer to pay any draft, order or warrant drawn upon him by the proper person for any public money, or to payover to his successor any public money or security promptly, on the legal requirement of any authorized officer, shall be taken on the trial of an indictment against him for embezzlement as prima facie evidence of such embezzlement. It is to be observed that these sections contemplate the prosecution and punishment of the person or officer thus charged with the public moneys. It must be such an officer as is required by law to settle with the auditor of state or county auditor. It must be such officer as is required to pay warrants drawn upon him and to pay over to his successor the public moneys or securities in his hands. All these things the law requires of a county treasurer but not of a deputy. Revised Statutes, sections 1043, 1044, 1115, 1105,1106, 1107, 1128.
    If, upon examination of the county treasury, it appears that an embezzlement has been committed by the county treasurer, he is summarily removed from that office, and in such cases the prosecuting attorney must begin an action upon tbe treasurer’s bond. Revised Statutes, sections 1133, 1134.
    A person not thus charged with the keeping of the public money, cannot be punished under these sections of the law, whatever other offense he may be guilty of. This question came before this Court in State v. Newton, 26 Ohio St., 265.
    Section 1117, volume 89 of the Ohio laws cannot change the status of the deputy and has long since been repealed. There is no averment that Myers was appointed or held office under it, and it existed but a short time as a part of the laws of Ohio.
    The deputy county treasurer in Ohio, is not required to give any official bond, as we have stated ; he is not by bond or otherwise, made responsible to the public authority for the keeping or disbursement of the public funds. People v. McKinney, 10 Mich., 54.
    The decisions in Ohio have clearly settled, whatever they may be elsewhere, that a deputy treasurer holding his office at the discretion of the treasurer, without bond and without salary payable from the public funds, or any stated term of office, is not the holder of an office of public trust or profit in this State. The State ex rel. v. Kennon etal., 7 Ohio St., 546; "Warwick v. The State, 25 Ohio St., 21.
    This question was before this Court in State v. Brennan, 49 Ohio St., 33.
   Williams, J.

The exceptions were taken to the decision of the court sustaining a demurrer to each of several counts of an indictment returned against the defendant, one of which, omitting the •caption, is as follows:

“Said John -W. Myers being an officer, to-wit: The deputy county treasurer of the said county of Stark, in the state of Ohio, and being charged as such officer with the collection receipt, safekeeping, transfer and disbursement of the public moneys belonging to said county and the city of Canton, Ohio, a municipal corporation in said county, certain of said moneys, to-wit: One hundred dollars ($100.00), of the public moneys, belonging to said city of Canton, did unlawfully and fraudulently embezzle and convert to his own use, which said moneys had then and there come into the possession and custody of said John W. Meyers, by virtue of his said office and in the discharge of the duties thereof; and so the said John W. Myers is guilty in the manner aforesaid, of the crime of embezzlement of the said public moneys, so as aforesaid, by him converted and used.”

The other counts to which demurrers were sustained are identical with the one above given, except that the times and amounts, of the embezzlements charged are different. All of the counts are founded on section 6841, of the Revised Statutes, which provides that:

“Whoever, being charged with the collection, receipt7~safe-keeping, transfer or disbursement of the public money, or bequest, or any part thereof, belonging to the state, or to any county,’ township, municipal corporation, board of education, cemetery association, or company of this state, converts to his own use, or to the use of any other person, body corporate, association or party whatever, in any way whatever, or uses by way of investment in any kind of security, stock, loan, property, Land or merchandise, or in any other manner or form whatever, or loans with or without interest to any company, corporation, association, or individual, or deposits with any company, corporation or individual, any portion of the public money, or any other funds, property, bonds, securities, assets or effects of any kind, received, controlled or held by him for safe keeping or in trust, for a specific purpose, transfer or disbursement, or in any other way or manner, or for any other purpose, shall be deemed guilty of embezzlement of so much of the money or other property thus converted, used, invested, loaned, deposited or paid out.”

The question raised Dy the demurrers, and presented by the exceptions, is whether this section applies to a deputy county treasurer who misappropriates the public moneys in either of the modes forbidden by the section. In the determination of the question, other statutory provisions . may properly be considered, especially those of section 7299, which, with the provisions of section 6841, were originally enacted in what is known as the independent treasury act, passed in 1858 (2 S. and C., 1610), and together constituted but one section, (section 15) of that act. The section was divided in the codification of the statutes, and the parts assigned to their appropriate places, as they now appear in the criminal code, without material alteration; the one being placed in the chapter in which crimes and offenses are defined, and the other in that regulating criminal procedure. The latter, now section 7299,_ reads as follows:

“Any failure or refusal to pay over, or to produce the public money, or any part thereof, by an officer or other person charged with the collection, receipt, transfer, disbursement or safe-keeping of the public money, or any part thereof, whether belonging to the state, or to any county, township, municipal corporation, or board of education in-this state, or any public money whatever, or to account to, or to make settlement with any proper and legal authority of the official accounts of such officer or person, shall *be held and taken as prima facie evidence of the embezzlement thereof; and upon the trial of any such officer or person, for the embezzlement of public money, under section 6841, it shall be sufficient evidence, for the purpose of showing a balance against him, to produce a transcript from the books of the auditor of state, or the auditor of the county, or the records of the commissioners of the county, and the refusal of any such officer or person, whether in or out of office, to pay any draft, order or warrant, drawn upon him by the proper officer, for any public money in his hands, no matter in what capacity the same was received or is held by him, or any refusal, by any person or public officer, to pay over to his successor, any public money or securities promptly on the legal requirement of any authorized officer of the state or county, shall be taken on the trial of an indictment against him for embezzlement as prima facie evidence of such embezzlement. ’ ’

It will be noticed that by its terms, section 6841, is restricted in its application, to persons who are “charged with the collection, receipt, safe-keeping, transfer or disbursement of the public money, or bequest, or any part thereof, belonging’ to the state, or to a county, township, municipal corporation, board of education, cemetery association or company of the state;” and the limitation is carried through section 7299, which declares that any failure or refusal to pay over, or to produce the public money, or any part thereof, by an officer or other person charged with the collection, etc., of such money, or to account to, or make settlement with, any proper and legal authority, of the official accounts of such officer or person, shall make a prima facie case of embezzlement; and, that section further declares, that on the trial of any such officer or person, for the embezzlement of the public money, under section 6841, it shall be sufficient evidence, for the purpose of showing a balance against him, to produce a transcript from the books of the auditor of state, or the auditor of the county, or the records of the commissioners of the county; and the refusal of any such officer or person to pay any draft or warrant drawn upon him by the proper officer, for any public money in his hands, or any refusal by any public officer to pay over to his successor any public money or securities promptly on the legal requirement of any officer of the state or county, shall be taken, on the trial of an indictment against him for\ embezzlement, as prima facie evidence of such ¡ embezzlement. j

From these provisions, it seems reasonably certain that the persons who are subject to prosecution under section 6841, are those only, who are charged by law with the performance ■ of the duties, or some of them, therein mentioned. There are officers and persons to-whom all these provisions of the statute aptly apply. For instance, by our statutes, county treasurers are charged with the collection of the public moneys belonging to the county, and with the collection of all taxes on the general duplicates placed in their hands bv the county auditor, and of all taxes and assessments on any special duplicate furnished by proper authority; and they are clothed with ample remedies for enforcing the collecton of the same. They are also charged with the custody, and safe-keeping of all public moneys received by them ; with their apportionment and transfer to the proper boards and public agencies; and with the payment and disbursement of all public funds which come to their hands, in specified modes prescribed by law;- which funds can lawfully be paid out, "only on the order or warrant of the county auditor. They are furthermore charged with the duty of keeping official accounts of their receipts and disbursements, and of making semiannual settlements with the county auditor, showing the amount received and paid out, with any balance remaining' in the treasury; and with making a full annual settlement with the county commissioners of like purport; and they are required at the end of their official term, to pay over to their successors all moneys in their possession as treasurer, and deliver over all books, papers and other property so held by them. Duties of a similar nature are enjoined by law on the treasurer of state, and have been on treasurers of townships, of municipal corporations, boards of education, and cemetery associations, with respect to the public funds of which they have been given control. And the application, of both sections, 6841, and 7299, to such officers and persons, is clear and indisputable. But we have found no provision of law by which a deputy, or clerk of a county treasurer is charged with the performance of any of the duties above enumerated. The law goes no further than to authorize the treasurer, at his pleasure, to appoint one or more deputies, who hold their. appointment only during the pleasure of the principal, who is answerable for the proceedings and misconduct of the deputy, and may, for his own protection, take a bond with sureties for the faithful performance of the services required of the deputy; but the latter takes no oath of office, nor gives bond to any public authority, and is in no sense a public officer, but a mere agent of the treasurer. Meachem on Public Officers, section 38. True, the statute confers authority on the deputy, during his appointment, to perform the duties of his principal ; but that falls short of charging the former with the performance of the duties of the latter. The difference is the substantial one between an j authority given to do an act, and enjoining the per- j formaneeof the act as a duty. That difference is j plainly observable, under our legislation, in the relations of a treasurer and his deputy to each other, and to the public. The former is charged by law with the duty of collecting and disbursing the public moneys, and the doing of all acts necessary thereto, as required by law; but the latter is not so charged with the performance of those duties. The provisions made for the public security, are the oath which the officer is required to take, the obligation of the sureties on his official bond, and the penal laws against official malfeasance; while the officer must look to such assurance as he obtains from his deputy, for protection against losses from his misconduct. There may be every reason why a deputy who misappropriates the public moneys, should be punished to the same extent that the principal may be, for a like act; and if he cannot be under other sections of statute, adequate legislation to that end should be provided. But the language of section 6841, “whoever being charged with the collection, etc., of the public money,” etc., is descriptive of the persons who may be guilty of the offenses it punishes, and is therefore descriptive of the offense; and, under that fundamental rule of strict construction applicable to all penal laws, a statute defining a crime cannot be extended by construction to persons or things not within its descriptive terms, though they may appear to be within the reason and spirit of the. statute. Persons cannot be made subject to such statute by implication. Only those transactions are included in them which are within both their spirit and letter; and all doubts in the interpretation of such statutes are to be resolved in favor of the accused.' Bishop on Statutory Crimes, section 194. Así said by Chief Justice Marshall, in the case of the United States v. Wiltberger, 5 Wheat., 76-96: “To determine that a case is within the intention of a statute, its language must authorize us to say so. It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity or of kindred character, with those which are enumerated. If this principle has ever been recognized in expounding criminal law, it has been in cases of considerable irritation, which it would be unsafe to consider as precedents forming a general rule for other cases.”

It is not sought to maintain the indictment under any other section of the statute, and as the defendant is not one of the persons included in the provisions of section 6841, the demurrers were properly sustained.

Exceptions overruled.