author: Mtnshall, C. J.

text:
    The State v. Johnson.

      Object oj section 6846, Rev. Stat. — Punishment jor diversion oj municipal funds — Conversion of money by officer to own use— Embezzlement — Section 6841, Rev. Slat.

    The object of section .6846, Rev. Stat., is to punish as an offense the diversion, appropriation or application of the funds of a municipal corporation, or of a board of education, by an officer or agent there named, to'a use other than that for which the funds were raised; a conversion of the money to his own use by such officer or agent is an offense under section 6841, punishing the embezzlement of public money, and is not within the language or spirit of the above section.
    (Decided June 25, 1895.)
    Exceptions of the prosecuting attorney to the rulings of the Court of Common Pleas of Jefferson county.

      E. E. Ershine and Dio Rogers, for plaintiff in error.

      I M. Jordan and James F. Daton, for defendant in error.
   Mtnshall, C. J.

The defendant was tried and convicted upon an indictment presented by the grand jury of the county. The indictment contained four counts. The conviction was had upon the first. The others, so far as the question here is concerned, are immaterial. The first count charged that the defendant, being the clerk of the city of Steubenville, on September 5, 1893, “did then and there, unlawfully and knowingly, divert, appropriate and apply certain funds of said city of Steubenville, to wit: moneys in the sum of ninety-three dollars and seventy-five cents, belonging, to the ‘ Public Light Fund ’ of said city, to other use and purpose than that for which the same was raised, by then and there converting- the same to the use of him, the said William R. Johnson, the same having been raised under the laws of the state of Ohio for the use of said public light fund,” and it came into his hands in pursuance of the ordinances of the city. The jury found the.defendant guilty as charged in the first count, and not guilty as charged in the other counts; the other counts differing from the first only in the averment as to the official character in which the defendant acted — the second count charging him as “agent,” the third as “officer,” and the fourth as “servant.” The jury also found that the defendant “diverted and appropriated $93.75 to a use and purpose other than that for which it was raised.” A motion was made in arrest of judgment, on the ground that the facts stated in neither count of the indictment constitute an offense under the laws of Ohio. The motion was sustained, and the prosecuting- attorney excepted to the ruling, and brings the question here for review upon a bill of exceptions.

It is claimed, and seems to be conceded by the prosecuting attorney, that the indictment was drawn to support a conviction under section 6846, Revised Statutes; and the question is whether its averments are sufficient for that purpose. We are of the opinion that they are not. That section reads as follows: “A member of the councilor board of aldermen of any municipal corporation, or an officer, agent, clerk, or servant of such corporation, or of any board or department thereof, or any officer, agent, clerk or servant of any board of education, who knowingly diverts, appropriates, or applies any funds or part of any fund raised under any law by taxation or otherwise, to any other use or purpose than that for which it was raised or appropriated, or who knowingly diverts, appropriates, or applies any money borrowed, or any bond of the corporation, or any part of the proceeds of such bond, to any other use or purpose than that for which such loan was made, or bond issued, shall be deemed guilty of embezzling the amount so diverted, appropriated, or applied, and punished accordingly.” The purpose of this section seems very clear, from the languageemployed. It is not to punish any act of an officer or agent of a corporation, done with the view of personal gain, such as converting money under his control to his own use, but his act as such officer or agent, knowingly done for the purpose of diverting or misapplying the money belonging toa particular fund, or raised for a particular purpose, to some other fund or municipal purpose than that for which it was raised.

The offense of converting money or property, intrusted to the care of a person, to his own use, that is, embezzlement in its proper sense, is punished by the previous sections of the statutes. This offense is not of that character. This more fully .appears from the history of the section. On May 7, 1869, what is known as the Municipal Code was adopted. 66 Ohio L., 149. It provided in chapter 53 thereof for the creation of a “sinking-fund” for the gradual extinguishment of the bonds and funded debt of municipal corporations ; and to secure the preservation of this fund, it was enacted, in section 675, that “If any member of the council, or officer of the corporation, shall knowingly divert or appropriate the tax or shaking fund raised under this act, to any other purpose than that to which it is by this act appropriated, he shall, on conviction,” be punished as therein provided. 66 Ohio L., 263. By an amendment, passed April 7, 1876, 73 Ohio L., 116, this section was so extended as to make it an offense for any member of the council, officer or ag’ent of the corporation, to knowingly divert or apply any fund to a use or purpose for which it was not raised. This section as amended was further extended and made to include the misapplication of loans and bonds, and of the funds of a board of education, and is now the section of the Revised Statutes in question. A disregard of the inviolability, intended by the legislature, of sinking funds and finally of all funds raised for a particular purpose, without doubt, induced the enactment of section 6846, and of the sections of which it is a revision, and its object is to punish the agent concerned in the diversion. It is therefore clear that the averments of the indictment are not sufficient to constitute an offense under this section. It is true the indictment avers that the defendant knowingly diverted and appropriated the moneys of the public light fund of the city to uses other than those for which the fund was raised ; but this was done, as the indictment proceeds to aver, by converting the same to the use of the defendant. Such conversion constitutes an offense under section 6841, punishing the embezzlement of public money.

If the evidence had been sufficient to support a conviction under this section, it is possible that, by a liberal construction, the indictment might have been construed to charge such an offense. It does not follow the usual form of such an indictment, Wilson’s Ohio Criminal Code, 69, and the prosecuting attorney does not claim that it was drawn under section 6841; his claim is that it is under the following’ section, 6846. To regard it as drawn under the prior section, the averment that the defendant did unlawfully and knowingly divert, appropriate and apply certain funds, the public light fund of the city, to other use than that for which they were raised, would have to be regarded as surplusage. But we need not decide the question here. A good prosecutor, intending to charge an offense under section 6841, would most likely follow forms based on the language of’ the section, and omit all immaterial averments. The jury in their verdict found that the defendant ’“diverted and appropriated $93.75 to a use and purpose other than that for which it was raised.” The evidence is not contained in the bill of exceptions ; so that this court cannot know that the jury meant by this something not expressed in the language. It is certainly not equivalent to a finding that he converted the money to his own use, and is consistent with the fact that he did not. So that we cannot say that the court erred in arresting the judgment.

Exceptions overruled.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Frame, Aud., et al. v,. State ex rel.

      Dow law — Distribution of revenues and fines resulting therefrom.

    (Decided June 25, 1895.)
    Error to the Circuit Court of Athens county.

      J. P. Wood, for plaintiffs in error.

      J. M. Me Qillivrcory and W. E. Peters, for defendant in error.
   By the Court.

In counties, other than Hamilton, having a county infirmary, the revenues and fines resulting under what is known as the Dow law, on account of business carried on in every township outside of a municipal corporation, should be distributed as follows: To the state two-tenths thereof, and to the county poor fund all of the remainder.

Judgment reversed.

Minshall, C. J., dissents.


text:
    Cincinnati v. Steadman, Trustee.

      Nunc pro tunc order — Action of cottrt allowing ccmnot be reviewed,, when,
    (Decided June 25, 1895.)
    Error to the Circuit Court of Hamilton county.

      Frederick R&rtenstein, Corporation Counsel, for plaintiff in error.

      ReaVy da Brannan, for defendant in error.
   By the Court.

The action of the court allowing a nunc pro tunc order, showing that an exception was taken to the overruling of a motion for a new trial, cannot be reviewed in a proceeding instituted simply to reverse such order. It is not a final order. The. error, if any, is of no consequence unless a proceeding is commenced to reverse the final judgment in the action; and in such case, the defendant in error may insist on the affirmance of the judgment on the ground that it is shown by the bill of exceptions in the record, that the exception was in fact taken to the overruling of a motion for a new trial. For this reason the judgment o.f the circuit court is reversed, and the petition in that court dismissed.


author: By the Court:

text:
    Ohio & Pennsylvania Coal Co. v. Smith, Adm’r.

      Pending acticni for damages — • When does not abate by plaintiffs death. “
    A pending action to recover damages for injuries caused by the negligence of the defendant does not abate by the death of the plaintiff.
    Decided June 27, 1895.
    Error to the Circuit Court of Columbiana county.
    For injuries claimed to have been caused by the negligence of the Ohio and Pennsylvania Coal Company and its agents, Henry Davidson, then in life, commenced an action against the company to recover damages. On a trial had a judgment was rendered in his favor, which was afterward set aside on error by the circuit court, and a new trial awarded. Afterward, and before the new trial was had, Davidson died, and the action was revived in the name of his administrator, Alexander G. Davidson.
    A trial was then had, which resulted in a verdict and judgment against the company. It was claimed that on the death of the plaintiff the action abated under section 5144, Revised Statutes, and that the court erred in permitting’ it to be reversed. On error the judgment was affirmed by the circuit court. Error is prosecuted, to this court to reverse the judgment on the ground, among other assignments, that there was error in the revivor of the action.

      Blandin <& Rice, John W. Morrison, and II. M. Daugherty, for plaintiff in error.

      Alex. G. <& P. M. Smith, & P. M. Ashford, for defendant in error.
   By the Court:

We see no error in the ruling of the court. The action was a pending one at the death of the plaintiff. It is not within any of the enumerated exceptions of section 5144, and was, therefore, properly revived and prosecuted to judgment.in the name of the administrator of the deceased plaintiff.

Judgment affin-med.


author: Burket, J.

text:
    State of Ohio ex rel. v. Ferris.

      Taxation — Direct inheritance tax — Laws of general nature — Constitutional law — Invalidity of act of April SO, 1894 (91 O. L., 166).

    1. Funds raised by the taxation of franchises, rights and privileges, may be applied to purposes of general revenue, or any other purpose authorized by statute.
    2. A law of a general nature, which is in full force in every part of the state, complies with section 26 of article 2 of the constitution, requiring laws of a general nature to have a uniform operation throughout the state.
    3. The act of April20, 1894, entitled: “An act to impose a direct inheritance tax, ” 910. L., 166, by its exemption from taxation of the right to receive or succeed to estates not exceeding twenty thousand dollars in value, and taxing the whole right of receiving or succeeding to estates which exceed that sum in value, and in taxing at a higher rate per centum the right to receive or succeed to estates of larger value than to estates of smaller value, is in conflict with section 2 of the bill of rights of the constitution of this state, which declares that: ‘ ‘All political power is inherent in the people. Government is instituted for their equal protection and benefit; ’ ’ and the whole act is therefore unconstitutional and void.
    4. The first section of the fourteenth amendment to the constitution of the United States, which provides that no state shall ‘ ‘deny to any person within its jurisdiction the equal protection of the laws,” is not, as to the question in this oase, broader than the second section of our bill of rights.
    (Decided June 27, 1895.)

      ERROR to the Circuit Court of Hamilton county.
    This case was commenced in the circuit court of Hamilton county, in the name of the state on relation of John C. Schwartz, prosecuting attorney, against Howard Perris, judge of the prohate court of said county, in mandamus in the nature of procedendo, to compel the judge of said court to proceed and perform his official duties under the act of April 20, 1894, entitled “An act to impose a direct inheritance tax, ” 91 Ohio L., 166, as applicable to the estate of George K. Duckworth, who was a resident of said county, and died on the 8th day of May, 1894, leaving an estate of over fifty thousand dollars. The petition says that letters of administration have been granted to the widow, Lucy B. Duckworth, that the prosecuting attorney has made proper application to said probate judge for the appointment of appraisers to appraise the property of said estate for the purpose of having-said direct inheritance tax assessed, that said probate judge refused and still refuses to make such appointment, on the ground that said statute is unconstitutional. To this petition the probate judge filed a demurrer, which was sustained by the circuit court, on the ground that the statute is unconstitutional, and to which plaintiff excepted. Judgment was thereupon rendered in favor of defendant below.
    A petition in error was then filed in this court to reverse the judgment of the circuit court.

      J. K. Richm-ds, Attorney General, and Thomas II. Darby, Assistant Pros. Atty., for plaintiff in error.
    Tbe circuit court sustained the law in principle, but held it defective solely because of the exemption feature; in other words, the circuit court held the legislature has power to impose a direct inheritance tax, and that if the law had exempted $20,000, or any other' sum, of evei-y estate from taxation, it would be a valid and constitutional law, eyen in imposing a graded tax, as it does.
    The circuit court held:
    1. The tax attempted to be imposed is not upon the property itself.
    2. But is in the nature of an excise upon the rig’ht or privilege of succession to such property.
    3. Such tax does not violate section 2, article 12, but may be rightfully imposed under section 1 of article 2, the general grant of legislative power.
    4. The act is not in conflict with section 26, article 2, providing all laws of a general nature shall have a uniform operation throughout the state.
    5. But the law violates the underlying principle of uniformity, laid down in Railroad Company v. Connelly, 10 Ohio St., 160, in the complete exemption of estates of $20,000 and under.
    6. But, if the statute exempted $20,000 or any other sum, of every estate from taxation, it would, in our judgment be equal and valid, even in imposing' a graded tax, as it does.
    7. Because of the exemption feature, the statute violates the 14th amendment of the constitution of the United States.
    . On behalf of the law, it was and is now by the state insisted — •
    I. The limitation of section 2, article 12, is on the taxation 'of property, and does not preclude the use, under the general grant of legislative power, of other modes of raising revenue. Ashley ease, 49 Ohio St., 504.

      II. The constitutionality of a law making an exaction for purposes of revenue depends upon its operation and effect, and not upon the form it may be made to assume.
    III. Construed as tax laws are construed, the •law does not levy a tax upon property, but upon the privilege of transmitting and succeeding to property; the property is the subject of the appraisal, but the privilege is the subject of the tax.
    IV. In all eases where the state has the power to regulate and control the possession and exercise of any right, privilegie or franchise, it may tax the right, privilege or franchise by annexing such condition to its enjoyment, and making- the person or corporation which gets the privilege pay the price the state puts upon it. Telegraph Company v. Mayer, 28 Ohio St., 533; Reinmund case, 45 Ohio St., 214. Adler v. Whitbeck, 44 Ohio St., 555, Anderson v. Brewster, 44 Ohio St., 585.
    V. The right to transmit or take property by will or descent is the creature of law, secured and protected by its authority. This privilege being derived from the state, must be enjoyed subject to such condition as the state may impose, and the state may make the payment of a tax such condition, if it sees fit. Eyre v. Jacob, 14 Gratton, 422; Miller v. Commonwealth, 27 Gratton, 110; Peters v. The City of Lynchburg, 76 Va., 927; Schoolfield v. The City of Lynchburg, 78 Va., 366; Strode v. Commonwealth, 52 Pa. 181; Tysons. Maryland, 28 Md., 477; State v. Dalrymple, 70 Md.. 295; Mager v. Grima, 8 How., 490; Carpenter v. Commonwealth, 17 How., 456; Wallace v. Myers, 38 Fed. Rep., 184; Pullen v. Commissioners, 66 N. C., 361; Matter of McPherson, 104 N. Y., 306; Matter of the Estate of
      Swift, 137 N. Y., 77; Matter of Knoedler, 140 N. Y., 377; Curry v. Spencer, 61 N. H., 624; State v. Hamlin, 30 Atl. Rep., 76; Minot v. Winthrop, 38 N. E. Rep., 512.
    VI. The general rule of uniformity underlying all taxation admits of classification and therefore exemption. Under the general grant of legislative power, the general assembly may classify subjects for taxation, and adopt such methods of raising- revenue as in its judgment may result not only in an equality of burdens, but in the promotion of the interests to the state and the welfare of the people. Chicago Railroad Company v. Iowa, 94 U. S., 155; Railway Company v. Connelly, 10 Ohio St., 160.
    VII. The so-called exemption of estates not exceeding- $20,000, in value, and the graduated rate on estates exceeding- $20,000, is a proper exercise of the legislative power, not wholly to classify subjects for taxation, but to regulate the privilege of transmitting and receiving property under will or by descent.
    In considering- the feature of the g-raduated scale of the tax, the court must look at it not simply as a means of raising revenue, but as a means of regulating- the transfer of property after death.
    This law should not be sustained simply on the g-round that the state has the right to tax the privileg-e of inheritance. Along with the right to tax must be the right to regulate. And in this case, the legislature passed the law not simply to raise revenue, but to regulate the transmission of estates, the descent or devolution of property by will or under the intestate laws.
    In opposition to the law the contention amounts to this:

      1. The tax is on property because—

      (а) It is for general revenue, and no tax can be levied for that purpose except on property.
    (б) By the terms of the act, the tax is nominally and in effect laid upon property.
    2. Being a tax on property, it violates in several respects section 2, article XII.
    3. If not a tax upon property, still the exemption and the graduated 'rate violate the principle of uniformity which must underlie all taxation.

      Thomas MoJDougall; Alfred Oassett; Paxton, Warrington (& Boutet; Edward S. Raxoson; W. F. Ampt; J. Shroder and Boynton da Ilorr, for defendant in error.
    The title of the act alone shows that it is merely a fiscal measure. It is an act to impose a direct inheritance tax. Burgett v. Burgett, 1 Ohio, 480; Bronson v. Oberlin, 41 Ohio St., 483; State v. Pugh, 43 Ohio St., 113; U. S. v. Fisher, 2 Cranch, 358; U. S. v. Palmer, 3 Wheat., 610; Railway v. State, 49 Ohio St., 189; Mayor v. Second Ave. R. R. Co., 32 N. Y., 273; Mayor v. Third Ave. Ry. Co., 23 N. Y., 42; Jackson v. Newman, 59 Miss., 385; State v. Columbia & Rich. (S. C. N. S.), 6-7; North Hudson Co. Ry. v. Hoboken, 41 N. J. L., 71; Kip v. City of Patterson, 26 N. J. L., 298.
    Taxes upon the privilege of succession, which are for revenue in whole or in part, must be by uniform rate. Hill v. Higdon, 5 Ohio St., 243; Reeves v. Treas. of Wood Co., 8 Ohio St., 333; Northern Indiana R. R. Co. v. Connelly, 10 Ohio St., 159; City of Zanesville v. Auditor, 5 Ohio St., 592; City of St. Louis v. Spiegel, 75 Mo., 145; Cooley on Taxation, 2; Cooley’s Const. Lim. (6th ed.), 615; Sanderson v. Mann, 76 Wis., 477; Bank
      v. Hines, 3 Ohio St., 1; Zanesville v. Richards, 5 Ohio St., 592; Cincinnati Gas Light & Coke Co. v. State, 18 Ohio St., 242; State v. Frame, 39 Ohio St., 399; Senior v. Ratterman, 44 Ohio St., 677; Wasson, v. Commissioners, 49 Ohio St., 622; Anderson v. Brewster, 44 Ohio St., 576; Marnet v. State, 45 Ohio St., 63; Field v. Commissioners, 36 Ohio St., 476; Bowles v. State, 37 Ohio St., 35; Carlisle v. Hetherington, 47 Ohio St., 248; Woodbury v. Berry, 18 Ohio St., 456; State v. Pugh, 25 Ohio St., 26; Woodworth v. State, 26 Ohio St., 196; Tourney v. Yeoman, 14 Ohio St., 208; Grogan v. Garrison, 27 Ohio St., 50; Last Will etc., Hathaway, 4 Ohio St., 385; Commonwealth v. Smith, 5 Pa. St., 142; Bittinger's s Estate, 129 Pa. St., 344.
    If the act be construed as a regulation of a privilege, it violates section 26, article 2, of the Ohio Constitution and the last clause of amendment XIV to the Federal Constitution; McGill v. State, 34 Ohio St., 228; State v. Ellet, 47 Ohio St., 93; Kelley v. State, 6 Ohio St., 269; Commissioners v. Rosche Bros., 50 Ohio St., 103.
    The conclusion is inevitable, that whether we treat the privilege of succession or the persons enjoying that privilege as the true subject of classification under this statute, there is but a single class and that class cannot be subdivided. If it be treated as a privileged class to be taxed according to value, then it ought to be taxed according to the value of the thing received, not according to the value of the estate from which it was received. That such classification is condemned bjr this court, we confidently submit is proved by the principles laid down in Costello v. Wyoming, 49 Ohio St., 202; Bronson v. Oberlin, 41 Ohio St., 481; City of Kenton v. State ex rel., 32 W. L. B., 334;
      Minnesota et al. v. Gorman, 40 Minn., 232; Curry v. Spencer, 61 N. H., 624; State v. U. S. & Can. Exp. Co., 60 N. H., 219; State ex rel. Mann, 76 Wis., 469; Barbier v. Connolly, 113 U. S., 27; Ky. R. R. Tax Cases, 115 U. S., 321; Bell's Gap R. R. Co. v. Pa., 134 U. S., 232; Home Ins. Co. v. N. Y. State, 134 U. S., 594; Pacific Express v. Seibert, 142 U. S., 338; Soon Ring v. Crowley, 113 U. S., 703.
    It is significant, too, that in New York, Pennsylvania, Massachusetts, Maine, Maryland, Virginia, and North Carolina, the states where, under the peculiar features of their constitutions, inheritance taxes have been upheld, the statutes in each instance imposed a uniform rate of taxation. But it is argued by our learned adversaries that the right to make any exemption implies the further right to make gradations of variances in the rates to be imposed. This argument assumes that there is a right to make an exemption. But does it follow from this assumed right that the rule of uniformity can be ignored and violated as to the privilege of succession intended to be taxed? Ould & Carrington v. City of Richmond, 23 Grat., 464; Allen v. Drew, 44 Vt., 174; Pollock v. Farmers’ Loan & Trust Co., 15 Supreme Ct. Rep., 695.
    The court is here asked to recall and bear in mind all that has been shown in support of our claim of want of uniformity of the scheme of taxes imposed. If the showing there made are at all correct; it seems to us clear that the act is also violative of that part of amendment XIV section 1, of the Constitution of the United States. San Mateo v. Railroad, 13 Fed. Rep., 722; County of Santa Clara v. Southern Pac. R. Co., 18 Fed. Rep., 185; State v. Express Co., 60 N. H., 219.

      Brief of Thomas McDougall and Alfred C. Oassett.

    The tax in question is uniformly referred to as a tax on property, and questions arising under the law decided accordingly in the following1 cases: In re Short's estate, 16 Pa. St., 62; Hood's estate, 21 Pa. St., 106; Strode v. Commonwealth, 52 Pa. St., 181; Clymer v. Commonwealth, 52 Pa. St., 189; Commonwealth v. Coleman's Admrs., 52 Pa. St., 468; Drayton's Appeal, 61 Pa. St., 172; Miller v. Commonwealth, 111 Pa. St., 321; Commonwealth's Appeal, 129 Pa. St., 338.
    The law thus presents all the features of a law taxing property. There is no inconsistency in its provisions as such a law, and the legislature has the rig’ht to levy a tax on property. This being true, it is not within the province of the court to disregard the plain language of the statute and conjecture what the legislature might have meant. Last Will, etc., of Hathaway, 4 Ohio St., 383; Woodbury v. Berry, 18 Ohio St., 456; State v. Peck, 25 Ohio St., 26; Grogan v. Harrison, 27 Ohio St., 50.
    We freely admit that article 12, section 2, does not contain the grant of the taxing power; that it is but a limitation on the right to tax which is contained in the general grant of legislative power. Zanesville v. Richards, 5 Ohio St., 589; Hill v. Higdon, 5 Ohio St. 243; Reeves v. Treasurer, 8 Ohio St., 333; Baker v. The City of Cincinnati, 11 Ohio St., 534; Cincinnati Gas Light & Coke Co., v. The State, 18 Ohio St., 237; State v. Frame, 39 Ohio St., 399.
    The direct inheritance tax law violates article 12, section 2, of the constitution of Ohio. First: — This law causes the same property to be taxed twice, in some cases more than twice in the same year. Brown v. Maryland, 12 Wheat., 436; Welton v. State of Missouri, 91 U. S., 275; Telegraph Co. v.

      Texas, 105 U. S., 460; Telegraph Co. v. Mass., 125 U. S., 530; State v. Hipp, 38 Ohio St., 199.

      Second — ■'While it .purports, generally speaking, to levy a tax upon decedents’ estates, it makes an unlawful exemption of estates less than $20,000 in value. Exchange Bank v. Hines 3 Ohio St., 13; Zanesville v. Richards, 5 Ohio St., 593; Fields v. Commissioners, 36 Ohio St., 476.

      Thi/rd — The law does not tax the property by a ' uniform rule of rate per cent. State v. Gorman, 41 N. W. Rep., 948; Bank v. Hines, 3 Ohio St., 15; State v. Hamlin, et al., 30 Atl. Rep., 76; State v. W. U. Tel. Co., 73 Me., 527; State v. Maine Central Ry. Co., 74 Me., 382; Ry. Co. v. State, 49 Ohio St. 189; Minot v. Winthrop, 38 N. E. Rep., 512; Hamilton Co. v. Mass., 12 Allen, 298.
   Burket, J.

This case has been argued with marked ability on both sides, and the arguments have greatly aided the court in reaching its final conclusions.

We have carefully examined and considered all the cases cited by counsel, and many others, and shall state rather the conclusions reached than lengthy arguments in support thereof.

The first section of the statute in question is as follows:

Section 1. Beitenactedbythe General Assembly of the State of Ohio, That all property within the jurisdiction of the state, and any interest therein, whether belonging to inhabitants of this state or not, and whether tangible or intangible, including annuities, which shall pass by will or by the intesr tate laws of this state, or by deed, grant, sale, or gift made or intended to take effect in possession or enjoyment after the death of the grantor, to the use of the father, mother, husband, wife, brother, sister, niece, nephew, lineal descendant, adopted child, or person recognized as an adopted child and made a legal heir under the provisions of section 4182 of the Revised Statutes of Ohio, or the lineal descendant thereof, the lineal descendant of any-adopted child, the wife or widow of a son, the husband of a daughter of decedent, or of any one in trust for such person or persons, shall be liable to a tax as follows, to-wit: When the value of the entire property of such decedent exceeds the sum of twenty thousand dollars and does not exceed the sum of fifty thousand dollars, one per cent.; when it exceeds fifty thousand dollars and does not exceed one hundred thousand dollars, one and one-half per cent. ; when it exceeds one hundred thousand dollars and does not exceed two hundred thousand dollars, two per cent.; when it exceeds two hundred thousand dollars and does not exceed three hundred thousand dollars, three per cent.; when it exceeds three hundred thousand dollars and does not exceed five hundred thousand dollars, three and one-half per cent.; when it exceeds five hundred thousand dollars and does not exceed one million dollars, four per cent.; and when it exceeds one million dollars, five per cent.; seventy-five per cent, of such tax to be for the use of the state, and twenty-five per cent, for the use of the county wherein the same is collected ; and all administrators, executors and trustees shall be liable for all such taxes, with lawful interest, as hereinafter provided, until the same shall have been paid as hereinafter directed. Such taxes shall become due and payable immediately upon the death of the decedent, and shall at once become a lien upon said property.! ’

It is this first section that is claimed to be unconstitutional, and which was so held by the circuit court.

In view of the authorities cited, it must be conceded that the general assembly has the power to pass an inheritance tax for purposes of general revenue, unless prohibited by the constitution of our state. Properly understood, it is not the right to transmit, but the right and privilege to receive, that is taxed. The right to dispose of property during the lifetime of the owner, cannot be separated from the property itself, and therefore to tax the right of disposal by contract in the lifetime of the owner, even though to take effect at his death, is to tax the property itself. But the right -to dispose of the property by will or descent taking effect after the death of the owner, is not so closely connected with the right of property, and it is not so clear that such right may not be taxed.

But when the right to receive the property is considered, it is clear that the right is distinct and separate from the property itself, and the state may tax this right to receive property, and this is so whether the property is disposed .of by the owner during his lifetime, or at his death.

This right to receive property is under the control of the legislature, and it has the power to regulate and lay such burdens thereon as it may see fit, within the provisions of the constitution. To regulate by taxation or otherwise the privilege or right to receive property, is not in conflict with the first section of the Bill of Rights, which recognizes the inalienable right of acquiring, possessing and protecting property. Were it otherwise, all our laws as to wills, descent, distribution and conveyances would be unconstitutional.

It is urged, however, that the statute in question does not tax the right or privilege of receiving property, but taxes the property itself.

It must be conceded that the language used in the statute, is upon its face clearly a taxation of the property itself, and not of the right to acquire property. And for myself, I think this is the true construction of the act. Others of the court, however, think that when the operation and effect of the statute are considered, that it may be regarded as taxing the right or privilege, rather than the property. Certain it is that the only thing that can be constitutionally taxed is the right or privilege of succession, and a statute having such taxation in view, should express its purpose in words applicable to such subject matter of taxation.

It is conceded by all parties, that if this statute imposes a tax on property, that it is unconstitutional. As a majority of the court are of opinion that it is not a tax on property, but upon the right to receive property, the statute must, as to this point, be sustained.

It is also contended that this tax is a tax on property because it is made a lien upon the real estate received, and cases are cited sustaining this view. Estate of William Bittinger, 129 Pa. St., 344.

The statute in that case provides as follows: “The tax on real estate shall remain a lien on the real estate on which the same is charged until paid. ’ ’ While the statute in this state provides simply that the inheritance tax “shall at once become a lien upon said property.” But aside from the difference in the words of the statute there is no force in the contention. If the legislature has the power to assess a tax upon the right to receive and succeed to property, it clearly lias the right to make such tax a lien upon the property received by the use of such right; and the making of such lien does not change the tax from a tax upon the right to receive, to a tax upon the property received under the right.

Next, it is urged that if the statute imposes a tax' only upon the right or privilege to receive property, that as the taxation thereby imposed is for general revenue, it is in conflict with section 2 of article 12 of the constitution, which provides that laws shall be passed taxing by a uniform rule all property according to its true value in money. The claim is that for purposes of general revenue property only can be taxed.

The constitution is silent as to the application of the fund arising on taxation on subjects other than property. The constitution being- silent, it follows that if such taxes can be levied and collected at all, that their application is within the sole and exclusive power and discretion of the general assembly.

' The power of taxation, without limitation, is given in section 1, article 2 of the constitution, which provides that-. “The legislative power of this state shall be vested in a general assembty, which shall consist of a senate and house of representatives.’'

In Western Union Telegraph Co. v. Mayer, 28 Ohio St., 521, it was held that the general grant of legislative power vested in the general assembly by this section, includes the power to collect revenue for public purposes, and the limitations on the exercise of this power are to be found in other provisions of the constitution.

In Hill v. Higdon, 5 Ohio St., 243, it is said by the court.: “In our present constitution, as well as in the. former, the general grant of legislative authority includes the power of taxation in all its forms. Restrictions upon its exercise are to be looked for in other parts of the instrument. ’ ’

The power of taxation, granted in the first section of the second article, being unlimited, is broad enough to include the power to tax rights, privileges and franchises. Is there any limitation upon this power found in any other section of the constitution ?

The only section which it is claimed limits this power is section 2 of article 12; that section is in the following words: “Laws shall be passed, taxing by a uniform rule; all moneys, credits, investments in bonds, stocks, joint stock companies or otherwise; and also all real and personal property, according to its true value in money; but burying grounds, public houses, houses used exclusively for public worship, institutions of purely public charity, public property used exclusively for any public purpose, and personal property to an amount not exceeding in value two hundred dollars for each individual, may, by general laws, be exempted from taxation; but all such laws shall be subject to alteration or repeal; and the value of all property so exempted shall, from time to time, be ascertained and published, as may be directed bylaw.”'

It-will be noticed that this section is not a limitation upon the power to tax rights, privileges and franchises, because the limitation by this section imposed is as to the taxation of property, that is, moneys, credits, investments in -bonds, stocks, joint stock companies, or otherwise and also real and personal property. Nothing- whatever is said about rights, privileg’es or franchises, and therefore this section cannot fairly be construed as a limitation of the power to tax rights, privileges and franchises, unless they are property within the meaning of this section of the twelfth article.

That a franchise is not property, within the meaning of said section, was held by this court, for reasons which seem unanswerable, in Hine v. Exchange Bank, 3 Ohio St., 1. The court say, on page 8, “A corporate franchise, therefore, being a mere privilege, or grant of authority by the government, is notjproperty of any description, and consequently not subject to taxation under the above provision of the constitution. ’ ’

It will be noticed that the court here say that a franchise is not such property as can be taxed under the above provisions of the constitution; the provisions referred to'are those contained in section 2, of article 12.

That a franchise is valuable, and in that sense property, has sometimes been held, but it is not property in the sense used in said section of the constitution, and its taxation is not by that section limited or restricted.

With the power of taxation of rights, privileges and franchises, granted by the first section of the second article, unlimited and unrestricted by other parts of the constitution, what authority is there to limit and restrict this kind of taxation to purposes other than for g-eneral revenue.? No warrant therefor is found in the constitution.

This court in Hine v. Exchange Bank, supra, after quoting the second section of the twelfth article on page 10, by Bartley, C. J., says: “The manifest effect of this constitutional provision is to make property the basis and the sole basis, of taxation. ” Again, on page 40, the court, by Thurman, J., says: “The objects of taxation declared in that instrument are the real and personal property and ehoses in action in the state.”

The part of the constitution under consideration was the second section of article 12, and nothing whatever is said about the general grant of power found in section one of article two. Throughout the whole ease of Hine v. The Exchange Bank, section 2, of article 12, is regarded as the granting of the power of taxation, instead of a limitation and restriction of the general power granted in section 1, of article 2. That such is not the true or correct construction of the constitution is now universally conceded. That construction was not necessary to the decision of the question then before the court, but it did not lead to an incorrect determination of that case. It mattered not in that case whether the grant of power of taxation was found in section 1 of article 2, or in section 2 of article 12; nor whether section 2, of article 12, was a grant of power of taxation or a limitation of the power granted by the other section of the constitution. The question for determination in that case was as to taxation of banks under section 3, of article 12, and that led to the question as to whether section 2, of that article, permitted the deduction of debts from moneys and credits. The question before the court had relation to property only, and construing section 2, of article 12, as a grant of power, instead of a limitation of power granted in another section, and as nothing’ except property is spoken of as taxable in said section 2, the court held that what was therein expressed as taxable, bjr implication excluded everything else, and therefore announced the rule that under said section the sole basis of taxation, is property. That property is not the sole basis of taxation, under the power granted by section 1, of article 2, appears by many decisions of this court, among which are the following: Telegraph Co. v. Mayer, 28 Ohio St., 533; Baker v. Cincinnati, 11 Ohio St., 540; Adler v. Whitbeck, 44 Ohio St., 565, 9 N. E., 672; Anderson v. Brewster, 44 Ohio St., 585, 9 N. E. 683; State ex rel. v. Reinmund, 45 Ohio St., 214; 13 N. E., 463; Ashley v. Ryan, 49 Ohio St., 504; 31 N. E., 721; Metz v. Hagerty, 51 Ohio St., 521.

The error of regarding the second section of article 12 as a grant of power of taxation, instead of a limitation upon that power, was carried into the decision of the ease of Zanesville v. Richards, 5 Ohio St., 589, but was partly corrected in Hill v. Higdon, 5 0. S., 243, and fully corrected in Reeves v. Treasurer, 8 Ohio St., 333. The court, on page 592, in 5 Ohio St., by Ranney J., says: “The public burdens are made to rest upon the property of the state, and whenever money is to be raised by taxation, the positive injunction -is, that “laws shall be passed, taxing by a uniform rule, all moneys, credits, interest in bonds, stocks, joint stock companies, or otherwise; and also all real and personal property, according to its true value in money. ”

That the public burdens are not made, by the constitution, to rest exclusivly upon the property of the state, is shown by the cases above cited, and that which is spoken of as an injunction that laws shall be passed taxing- by a uniform rule all moneys, etc., is, instead of an injunction, a restriction and limitation upon the general power of taxation granted by section 1, of article 2. In the Zanesville case, supra, the question was whether an exemption of lands, not laid out into lots within the city of Zanesville, from all taxes except for road purposes, was constitutional. The second section of article 12 was again regarded as the source of the power of taxation; but as only taxes on property were under consideration, this led to no erroneous results in- that case; and the court held that all lands within the city limits must be taxed for all purposes for which lots were taxed. The court say: u No tax, either for state, county, township, or corporation purposes can be levied without express authority of law, and this section of the constitution is equally applicable to, and furnishes the governing principle for, all laws authorizing taxes to be levied for either purpose. ’ ’

If by the applicability and governing principle, is meant equality of taxation of property without exemption, that is, that when some property in a city is taxed for state, countjq township or corporation purposes, all property within the city must be taxed for the same purposes without exemption, it is correct. But if it means, as we think it does not, that subjects of value, other than what are regarded property within said section, can not be taxed for state, county, township or corporation purposes, it is incorrect. That the former was meant, clearly appears from the subject matter under consideration. The question as to the taxation of rights, privileges and franchises was not under consideration, and the language used is not applicable thereto.

Speaking of the 94th section of the tax law, the court say, on page 592, that it seems to imply that municipal corporations might exist, which were authorized to tax only such real estate as was laid out into lots when platted and recorded. The court do not so construe that section, and say that if so construed it would conflict with section 2 of article 12. The question under consideration being whether lands within the city not laid out into lots could be taxed for purposes other than road purposes, the court say: “We are clear in the opinion, that if it (94th section) means what is claimed for it, and intends to provide for exemption of any part of the property in a municipal corporation otherwise subject to taxation, from contributing its proportion to the general revenue fund, it is in conflict with the second section of the twelfth article of that instrument, and should be treated as a nullity.”

This is the first time in the line of decisions that “general revenue'1'1 is mentioned. It will be noticed that it is property, and not franchises, that cannot be exempted from contributing to the “general revenue” fund. It will further be noticed that is is not stated here that only tax on property can contribute to the general revenue fund. Tbe full force of the decision is that property cannot be exempted from contributing- to the general revenue fund.

The court, in the Zanesville case, say, that property can not be exempted from contributing to the general revenue fund, and when reference is made to that case in the case of Hill v. Higdon, 5 Ohio St., 243, the word property is still retained, the court saying, on page 246: “In the case of the City of Zanesville v. Richards, decided at the present term, we have held that this section is equally applicable to, and furnishes the governing principle for, all laws levying taxes for general revenue, whether for state, county, township, or corporation purposes; and that it requires a uniform rate per cent, to be levied upon all property, according to its true value in money, within the limits of the state, or the local subdivisions for which the revenue is collected.” The governing principle here referred to is that all property shall be taxed according to its true value in money, when raising’ revenue for state, county, township or corporation purposes, and that there can, in such cases, be no exemption of property, except as provided in said section. This very clearly appears when the whole case is read, and by what immediately precedes the part above quoted. The question in the case was whether special assessments for street improvements were constitutional or not. There was no question involved whether or not general revenue could be raised by a tax on franchises or privileges, and what is said as to taxation for general revenue is to showthat in raising-general revenue there can be no exemption of property, other than is provided in section 2 of article 12. And when the court say, on page 249, that “the'second section of the twelfth article has established the principles upon which all taxes for general revenue purposes must be levied,” the principles referred to are the principles of equality, and that all property must be taxed without exemption, as provided for in said section. That this is so is shown by the language used by the court, the subject-matter under consideration, and the fact that those are the only principles found in said section. General revenue is not mentioned in the section.

In order to sustain assessments for street improvements, the court, in this case of Hill v. Higdon,, abandoned the position that the second section of article 12 was the source of the power of taxation, and the concession was made that “the general g-rant of legislative authority includes the power of taxation in all its forms,” and that “Restrictions upon its exercise are to be looked for in other parts of the instrument. ’ ’

The doctrine and line of decisions that general revenue cannot be raised otherwise than by a tax on property are both based upon the above eases of Hine v. Exchange Bank, Zanesville v. Richards, and Hill v. Higdon, none of which support the doctrine, but decide that in raising general revenue all property must be taxed without exemption, as provided in said second section.

The cases following the above three cases refer to the doctrine as well understood and settled by those cases without examining the doctrine anew to see whether or not it is well founded. The doctrine is not necessary to a proper decision of any of the cases in which reference is made thereto, and all of them not heretofore overruled were correctly decided without its aid, including Wasson v. Commissioners, 49 Ohio St., 622, and Railway v. State, 49 Ohio St., 189. In none of those cases is the doctrine sustained that general revenue cannot be constitutionally raised by taxation on franchises, rights and privileges, but the doctrine sustained is that when general revenue is to be raised by taxation on property, all the property of the state, county, township or corporation must be taxed without exemption, as provided in said section 2 of article 12 of the constitution.

It follows, therefore, that imposing the tax in question upon the right to receive property does not render the act unconstitutional.

Next it is urged that the statute in question is in conflict with section 26, of article 2 of the constitution, which provides that: “All laws of a general nature shall have a uniform operation throughout the state. ” This section of the constitution is not intended to guarantee the equal protection of all the inhabitants of the state, but only to provide that laws of a general nature shall be in full and equal force in all parts of the state. State v. Nelson, 52 O. S., 88, and cases there cited.

In the next place it is urged that the statue in question is unconstitutional in this, that it exempts estates of twenty thousand dollars and under from all taxation, and in case the estate exceeds twenty thousand dollars it taxes the entire estate without any exemption whatever, and also in this, that large estates are taxed at a higher rate per cent, than smaller ones.

Section 2 of the bill of rights provides as follows : “ All political power is inherent in the people. Government is instituted for their equal protection and benefit. ’ ’

This statue is in direct conflict with this section of the bill of rights. If government is instituted for the equal protection and benefit of the people, it follows that laws which are passed under a government so instituted, must likewise be for the equal protection and benefit of the people. This statue fails to protect equally the people who exercise the right and privilege of receiving or succeeding to property. The right to receive the first twenty thousand dollars of an estate not exceeding’ that sum, is protected from taxation, while the right to receive the first twenty thousand dollars of an estate exceeding that sum is taxed the sum of two hundred dollars; This is not equal protection. Again, the right to receive fifty thousand dollars’ worth of property of an estate not exceeding that sum is taxed five hundred dollars, while the right to receive fifty thousand dollars of an estate exceeding that sum is seven hundred and fifty dollars. This is not equal protection. The same may be said of the other gradations provided for in the statute.

The right or privilege of receiving or succeeding to property is valuable in proportion to the value of the property received. It cannot be consistently said that the right to receive twenty thousand dollars is of no value, and that the right to receive twenty thousand and one dollars is of the value of two hundred dollars and one cent.

Again, he who uses the right or privilege of receiving property of the value of twenty thousand and one dollars, and pays therefor a tax of two hundred dollars and one cent, is not equally benefited for the tax paid, as he who uses the the same right or privilege of receiving property of the value of ■ twenty thousand dollars, without paying any tax whatever for the use of such right. The exemption of twenty thousand dollars, and the increase of the per cent, as the value of the estate increases, renders this statute unconstitutional.

Our constitution requires equality in our tax laws, and also equality in their execution as near as may be. The only exemption allowed, as to taxation of property, is personal property to the amount of two hundred dollars to each individual, and certain other property devoted to public or charitable uses. Two hundred dollars in value to each individual is the extent to which the legislature has the power to exempt personal property from taxation. The constitution must be regarded as consistent with itself throughout, and as section 2, of article 12, permits an exemption from taxation of personal property not exceeding two hundred dollars a construction of section 2 of the bill of rights is thereby evinced to the effect that in taxation of subjects other than property, an exemption up to two hundred dollars in value would be regarded as for the equal protection and benefit of the people. The exemption must be equally for all, and the rate per cent, must be the same on all estates. There can be no discrimination in favor of the rich or poor. All stand upon an equality under the provisions of the constitution, and it is this equality that is the pride and safeguard of us all. It was this principle, more than any other that induced the decision in Hocking Coal Co., v. Rosser, 52 O. S., 12.

In support of the law it is urged that this exemption and gradation may be sustained upon the ground that the costs of administration in a small estate are proportionately larger than in a large one, and that therefore the small estate should be free from this taxation. The answer is that equality in taxation is required by the constitution, and that our administration laws are enacted upon the principle of equal protection and benefit of the people, and this unequal mode of taxation is not required to remedy any defect in the burdens of these laws.

Again, it is urged in support of the law, that an estate not exceeding- twenty thousand dollars is in the nature of a necessity for the support of widow and children; that the widow and children succeeding to so moderate a property ought to be exempted from paying the state anything for that privilege. The answer to this, as well as to the former proposition, is, that we are not here considering the policy or equity of this exemption, but the power of the legislature to make such discrimination, when prohibited from so doing by the second section of the bill of rights. When this power is once conceded, the manner of exercising the same, is limited only by the will of the legislature. In determining constitutional questions, courts should not attempt to solve them by reasoning’ only along’ the lines of the principles of equity, but the reasoning should be along the lines of the constitution, for it may be that the very object of-the constitution is to abandon and cut loose from what had theretofore been regarded as equity in particular cases, or upon a particular subject matter. The question is therefore, not what would be equitable, but what is constitutional. Equity cannot be permitted to override the constitution.

Again, it is urged in favor of the statute, that the state has the right to say that the heir or legatee or devisee of a large property enjoys a disproportionate privilege, because what he receives is in the nature of a luxury, and luxuries ought to be subject to higher taxes. The answer to this is that the value of the right to receive is in direct proportion to the value of the property received, and must under the constitution be taxed accordingly, if taxed at all. As to the higher tax on luxuries, it may be said that such a rule might find a place in tariff legislation, where all are free to indulge in the luxuries or not as they see fit, but that such rule can find no support in taxation, under a constitution requiring equality in taxation, and laws to be for the equal protection and benefit of all.

Again, it is claimed .in favor of the law, that this statute is not purely for the raising- of revenue, but for the regulation of the succession and transfer of property, and that the state has a right to say that it. will regulate the matter of succession to great estates, by making a greater charge for the privilege, and thus discourage the holding together of great estates until death.

The answer is, that the matter of succession and transfer of property is already fully regulated by our statutes as to wills, descent, distribution and conveyances, and if further regulation is desired purely as regulation, aside from revenue, it would most likely be sought in the amendment of those statutes.

The act is clearly one for taxation and not for regulation, as shown by its provisions and title. The state finds no warrant in its constitution for saying that it will make a greater rate or charge for the privilege of succeeding to large estates than to smaller ones, but on the contrary this is expressly prohibited by the requirement that laws shall be for the equal protection and benefit of the people. This requirement applies as well to laws for regulation as to laws for taxation. It is also contended by those opposing- the law, that the statute is inoperative, for the reason that it fails to provide any machinery for the collection of a tax levied on property which passes by “deed, grant, sale or gift, made or intended to take effect in possession or enjoyment after the death of the grantor.” Whether there is sufficient machinery supplied in this and other statutes, to enforce collection of said tax, need not now be determined, as that question is not involved in this case, and does not go to the constitutionality of the statute, but to its enforcement, if found constitutional.

As to the first section of the fourteenth amendmentto the constitution of the United States, which provides that no state shall “deny to any person within its jurisdiction the equal protection of its laws,” it is sufficient to say, that the provisions of this section of the federal constitution, as to this question, are not broader than the second section of our bill of rights, and that therefore a statute * upon this subject, authorized by our bill of rights, would not be in conflict with this section of the constitution of the United States.

While the facts in the case of Railway v. Connelly, 10 Ohio St., 159, said to have been followed and relied upon by the circuit court, bear little if any relation to this ease, the rule of decision in that case was in line with the second section of oiir bill of rights, and was therefore very properly followed by the circuit court.

Judgment affirmed.

Minshall, C. J., dissents from judgment of affirmance.

Shauck, J., concurs in the third and fourth propositions of the syllabus, and in the judgment of affirmance.


author: By the Court :

text:
    Havens et al. v. Horton, Jr.

      Deed of assignment — Power of probate court to order sale of mortgaged land — Jurisdiction thus acquired not ousted by mortgagee's action to foreclose.

    1. Where a deed o£ assignment has been filed in the probate court in accordance with section 6335, Rev. Stat., and the assignee has qualified, that court is clothed with jurisdiction to fully execute the trust. And where such deed conveys land encumbered by mortgage the court has power, as an incident of jurisdiction, to order the land sold and the mortgage satisfied.
    2. Jurisdiction thus acquired is not ousted by the subsequent commencement of an action by the mortgagee in the court of common pleas of the county, to foreclose the mortgage.
    [Decided June 27, 1895.]
    Error to the Circuit Court of Perry county.
    On May 11, 1893, the defendant in error commenced an action in the court of common pleas of Licking- county to recover upon six promissory notes, and for a seventh cause of action, to foreclose a mortgage on land in that county given to secure payment of the notes, against Robert Meridith, maker- and mortgagor, and George W. Havens, assignee. Havens answered, alleging in substance, “That on the 1st day of April, A. D. 1893, the said Robert Meridith made, and executed, and delivered to him his certain deed of assignment, granting and conveying to him all his property, real and personal, including the real estate described in plaintiff’s petition in trust under the insolvent laws of the state of Ohio, for the benefit of all the creditors of the said Robert Meridith.

      ‘ ‘ That said deed of assignment was filed in the probate court of Licking county, on the 1st day of April, A. D. 1893, at 1:20 o’clock p. m., and that this defendant on said date accepted the trust created in him by said deed of assignment, gave bond and was duly qualified by said probate court, and entered upon the discharge of his duti,es as such assignee.
    “That on the 25th day of April, A. D. 1893, an order of appraisement issued out of the probate court of said county, to three judicious, disinterested and qualified appraisers, directing and authorizing’ them to appraise according to law all property, real and personal, and assets of the said Robert Meridith, assigned as aforesaid to this defendant, and that said appraisers, acting under the authority of said order of appraisement, made an inventory and appraisement of all the assets of said estate, including the real estate described in plaintiff’s petition, and delivered said order of appraisement with their proceedings thereon to this defendant, and that this defendant filed the same in the probate court of said county, verified by his oath as required by law, on the 25th day of May, 1893.
    “And this defendant says, that on the 21st day of June, 1893, he filed a petition as assignee of the said Robert Meridith in the probate court of said county, to sell all the real estate belonging to said assignment, including the real- estate described in plaintiff’s petition, and that on July 1, 1893, the probate court, finding that' Thomas Horton, Jr., plaintiff in this action and one of the defendants in the petition to sell said real estate filed as aforesaid in the probate court by . this defendant as assignee, was a nonresident of Licking county, ordered that summons be served on said Horton by publication, and that such proceedings were had under said order, that on August 18, 1893, proof of publication of notice and service of summons thereby on said Thomas Horton, Jr., was filed in said probate court, and that on the-day of September, 1893, the said Thomas Horton, Jr., by his attorney, filed his motion in said probate court to said petition of this defendant, and afterwards, to wit: on the-day of September, 1893, on the application of said Thomas Horton, Jr., leave was given him to file his answer in said case in said probate court, and that by reason of the premises and of the facts above stated, said probate court had jurisdiction of the subject matter of plaintiff’s seventh cause of action before the commencement of plaintiff’s action in this court, and that said suit is now pending in said probate court.”
    To this answer the plaintiff demurred. The demurrer was sustained and decree of foreclosure entered. From this judgment the assignee appealed to the circuit court, where a like holding-was had and judgment rendered. To reverse this judgment the present proceeding in error is prosecuted.

      J. A. Flory and G. E. Daugherty, for plaintiff in error.

      J. B. Davies, for defendant in error.
   By the Court :

By, the filing of the deed of assignment in the probate court and the qualification of the assignee, in conformity with section 6335, Revised Statutes,, that court acquired jurisdiction of the real as well as personal property conveyed by the deed of assignment, and power to order sale of the land and payment of the incumbrance thereon, and that jurisdiction was not ousted by the commencement of an action by the mortgagee in the court of common pleas to foreclose his mortgage. Dwyer v. Garlough, 31 Ohio St., 158; Lindemann v. Ingham, 36 Ohio St., 1; Blandy v. Benedict, 42 Ohio St., 295; Sayler v. Simpson, 45 Ohio St., 141; Betz v. Snyder, 48 Ohio St., 492; (Clapp v. Banking Co., 50 Ohio St., 536; McNeil, Assignee, v. Hagerty, Auditor, 51 Ohio St., 263.

Judgment reversed and cause remanded to. the Circuit Court, with directions to overrule the demurrer and dismiss the petition.

Burket and Bradbury, JJ., dissent.


author: By the Coübt:

text:
    Schloenbach v. The State, ex rel.

      County Commissioners no authority to publish annual reports in German newspapers.

    The law does not authorize county commissioners to publish the annual report required to be made to the court of common pleas in a German newspaper.
    [ Decided October 1, 1895. ]
    Error to the Circuit Court of Hardin county.

      F. C. <& J. W. Dougherty and John II. Smick, for plaintiff in error.

      George F. Crane and C. D. Kelley, for defendant in error.
   By the Coübt:

The action below was brought by the defendant in error against the commissioners, auditor and treasurer of Hardin county to perpetually enjoin the allowance and payment of a bill presented by the plaintiff in error for publishing in the Kenton Wochenblatt, a German newspaper, the detailed report made to the court of common pleas, by the commissioners, of their financial transactions for the year preceding the third Monday of September, 1892, together with the report of the examining committee thereon. An injunction was allowed in the common pleas, and upon trial on appeal in the circuit court a like order of injunction was made perpetual. ■ To reverse this judgment the present proceeding is prosecuted.

We perceive no error in the judg’ment of the circuit court. The duty of the commissioners in regard to publishing their report is governed wholly by section 917 of the Revised Statutes, and that section does not afford authority for either ordering such report published in a German newspaper, or paying' for the same. See Cincinnati v. Bickett, 26 Ohio St., 49.

Judgment affirmed.


text:
    The State of Ohio ex rel. v. The Oak Harbor Gas Co.

      Abandoned gas or oil wells — Filling same — Form of petition — Act of Febmiary 9, 1893, (90 Ohio Laws, 24.)

    When an oil or gas well is about to be abandoned, or operation thereof cease, the statute (90 O. L., 24) requires, that before drawing the casing therefrom, it shall be securely filled in such manner as shall prevent the surface or fresh water from penetrating to the oil or gas bearing rock, and also as shall prevent the gas and oil from escaping therefrom. To comply with this statute, it is required that the necessary filling be done while the casing yet remains in the well; and a petition for the violation of this statute need not aver that the casing has been drawn.
    (Decided October 22, 1895.)
    Error to the Circuit Court of Ottawa county.
    The petition of plaintiff below, plaintiff in error here, is as follows:
    “The defendant is a corporation duly incorporated under the laws of the state of Ohio.
    “The defendant for several years last past has been the operator of a certain well, constructed for the purpose of producing petroleum oil, and natural gas, the same being- situated upon the parcel of land described as follows, to-wit: The east half of the southwest quarter of section three, Salem township, Ottawa county, Ohio. Defendant claims to be the owner of said well and pretends to be operating- the same for the production of petroleum oil and natural gas. But complainant alleges that said well has ceased to produce either petroleum oil, natural gas or any other profitable mineral substance, and has become wholly non-productive and of no value or use, and in fact the defendant has ceased to operate the same; and the condition of said well is such that surface or fresh water penetrates the oil or gas bearing rock through said well.
    “Complainant alleges that defendant has ceased to operate said well, and ever since the first day of April, 1893, he has unlawfully and wilfully neglected and omitted to securely fill said well with rock sediment, or with mortar composed of two parts sand and one part cement to the depth of two hundred feet above the top of the first oil or gas bearing rock, in such manner as to prevent the surface or fresh water from penetrating to the oil, or gas bearing rock, and in such manner as shall prevent the gas and oil from escaping from said well, as required by law, but the defendant has wholly, wilfully and unlawfully neglected and omitted and failed to fill said well in any manner whatever and has omitted to make any attempt to do the same in any manner, and all of which defendant refuses so to do, whereby the fresh or surface water penetrates to the oil and gas bearing-rock of said well, and gas and oil escapes therefrom, contrary to the form of the statute in such case made and provided.
    “Wherefore complainant prays that the defendant be found guilty of the facts charged and required to pay the penalty provided by law, and that a mandatory injunction may issue compelling the defendant to comply with the provisions of the act of February 9, 1893, entitled ‘An act to regulate- drilling, operating and and abandonment of petroleum oil, natural gas and mineral water wells, and prevent certain abuses connected therewith.

      To this petition, defendant below filed a general demurrer to the effect that the petition did not state facts sufficient to constitute a cause of action against the defendant. The demurrer was overruled by the court of common pleas and exceptions taken, and thereafter defendant filed the following answer:
    ‘£ The defendant now comes and admits that it is a corporation as alleg-ed in the petition.
    ££It also admits that it is the owner of the well described in the petition; and that it has not filled up its said well; but it denies each and every other allegation contained in said petition.”
    Upon trial of the case to a jury a verdict of guilty was returned, and the penalty of one hundred dollars was assessed against the defendant. A motion for a new trial was filed, on the ground that the verdict was against the weight of the evidence, and that the court erred in overruling the demurrer. This motion was overruled and exceptions taken, and judgment entered on the verdict.
    Upon proceedings in error the circuit court reversed the judgment on the ground that the petition does not state facts sufficient to constitute a cause of action, and that the court of common pleas erred in overruling- the demurrer to the petition. Thereupon a petition in error was filed in this court, seeking- to reverse the judgment of the circuit court.

      G. I. York and John Duff, for plaintiff in error.

      Thomas J. Marshall, for defendant in error.
   By the Court:

Section two of the act of February 9, 1893, 90 O. L., 24, provides that the owner or operator of any gas or oil well, when about to abandon or cease operating the same, and before drawing the casing therefrom, shall securely fill such well with rock sediment, or mortar composed of two parts sand and one part cement, to the depth of two hundred feet above the top of the first oil or gas bearing’ rock, in such manner as shall prevent the surface or fresh water from penetrating to the oil or gas bearing rock, and also as shall prevent the gas and oil from escaping therefrom. The penalty for a violation of the statute is one hundred dollars.

The particular in which the petition is claimed to be defective, is, that it does not aver that the easing had been drawn from the well. It is urged that so long as the casing remains in the well that there is no violation of the statute. It will be noticed that the statute requires the well to be securely filled, in such manner as shall prevent the surface or fresh water from penetrating to the oil or g-as bearing rock, and also as shall prevent the gas and oil from escaping therefrom. The filling is to be such as will keep the water out and the gas’ and oil in the rock. To draw the tubing out, léaving the casing in, would permit a free escape of gas and oil from the well; and if, by reason of age, corrosion, or other cause, the casing should become full of holes and leak, the fresh water would penetrate to the oil and gas bearing rock, to the great damage of the surrounding oil and gas territory. So that in case of such defective casing, even though the casing remains in the well, the fresh water will get to the oil or gas bearing rock, and the oil and gas will escape therefrom. It is therefore clear that it is not the drawing of the casing- that is the test as to whether a well has been abandoned or ceased to beoperated. The well may be abandoned and • all operations cease, with the casing left in the well. If the casing is in good condition no water can get into the well, but the tubing being pulled out the gas and oil can freely escape, even though the casing’ remains in the well. The reason the filling is to be done before drawing the casing is that the filling cannot be so securely done after the casing is drawn.

To shut down a well, leaving in the tubing and casing, is not to abandon it, nor ceasing to operate it. What is meant by the statue is a permanent abandonment, or a permanent ceasing- to operate, followed by pulling out the tubing, and usually, though not always, followed by drawing the casing.

It is therefore not necessary to the abandonment of, or ceasing- to operate a well, that the casing’ should be drawn, and it is not necessary to make an averment to that effect in the petition. The petition in this case therefore states facts sufficient to constitute a cause of action against the-defendant, and the demurrer was properly overruled. The circuit court therefore erred in reversing the judgment.

The judgment of the circuit court is reversed and, that of the common pleas affirmed.


text:
    Stearns v. Village of Wyoming et al.

      Member of council — Contested election — Decision of council cannot be reviewed.

    The determination by a council of the contested election of a member of its body, cannot be reviewed on error.
    (Decided October 22, 1895.)
    Error to Circuit Court of Hamilton county.
    In the court of common pleas of Hamilton county, the plaintiff in error, William S. Stearns, filed a petition in error against the village of Wyoming and the members of its common council named in the petition. He claimed that at an election held in the village on April 2, 1894, he was duly elected to the common council as one of its members, and certified as such. And that in a contest instituted in the council by certain parties on behalf of J. I. Taylor, he was ousted as a member, and that Taylor was declared elected and seated in his place. .' The plaintiff claimed that the council erred in receiving- oral testimony as to certain ballots received by the judges and not counted and in counting them for Taylor, contrary to the provisions of the statute on the subject. The common pleas, after hearing- the case, affirmed the action of the council and dismissed the plaintiff’s petition with costs. The judgment was affirmed on error by the circuit court with costs.

      Bateman <& Ha/rper, for plaintiff in error.

      Marsh <£¡ Richie, for defendants in error.
   By the Court.

Held: That the power conferred by section 1679, Revised Statutes, on common councils of municipal corporations to “judge of the election, returns and qualifications of their own members, ” is not only exclusive of any other jurisdiction to hear and determine the matter, as decided in State ex rel v. Berry, 47 Ohio St., 232, but is also final. The power exercised by councils in such cases, is political in character and not judicial in the sense that their determination of - the question who is, and who is not, entitled to a seat in their body, can be reviewed by a court. State ex rel. v. Harmon, 31 Ohio St., 250. It therefore follows, that the judgment of the circuit court should be affirmed with costs, and that that of the common pleas should be affirmed so far as it dismissed the petition of the plaintiff in error in that court, and reversed as to costs.

Judgment accordingly.


author: Shauck, J.

text:
    Mercer et al. v. Cunningham.

      Probate court jurisdiction — Assignment—Section 635S Rev. Stat.— Allowance to assignor in lieu of homestead — Assignor cannot resort to common pleas court, when.

    1. A probate court' exercising jurisdiction over property embraced in an assignment for the benefit of creditors has power, under section 6348, Revised Statutes, to order an allowance out of personal property to the assignor in lieu of a homestead.
    2. If such assignor omits to invoke the exercise of that power, he cannot resort to the court of common pleas by an action upon the bond of the assignee to recover the value of such property, even though he made demand therefor upon the assignee and the appraisers.
    [ Decided October 29, 1895.]

      Error to the Circuit Court of Tuscarawas county.
    . On the 9th day of April, 1890, Mrs. Cunningham filed in the court of common pleas her petition, of which the following is a copy.
    “The plaintiff says that on or about the 30th day of March, A. D. 1888, she was the owner of a stock of g’roceries of the value of $750.00, situate in a room in New Comerstown, in the county of Tuscarawas, in the state of Ohio, a few household goods, exempt to her by law, and some book accounts, amounting to the sum of about $350.00, a large part of which are and have ever been uncollectible and worthless.
    “That at the time said plaintiff executed and delivered to the defendant, Solomon Mercer, her deed of assignment, whereby she conveyed to him all her property in trust for the benefit of her creditors,' except this, that said deed of assignment contained a special provision therein, excepting therefrom and reserving to plaintiff, her exemptions in lieu of a homestead, and other rights and property to which she might be entitled, under the homestead, exemption, or other laws of the state of Ohio.
    “At the time of the making of said deed of assignment and ever since, plaintiff and her husband (she being all of said time and ever since a married woman), have been residents of the state of Ohio, residing together therein, and neither said plaintiff or her said husband being* the owner of a homestead, and her said husband owning no property whatever, real or personal, and all the property owned by the plaintiff at the time of said assignment or since is that aforesaid, all of which said Solomon Mercer, defendant, ever well knew.

      “At the time said plaintiff delivered to said Mercer said deed of assignment, he was notified by both plaintiff and her attorney, that she reserved and retained from said property, and demanded that he cause to be set off to her enough thereof to amount in value to the sum of $500.00 in lieu of a homestead, and that plaintiff would at all times be ready to select and take possession of the same.
    “Said Solomon Mercer, defendant, on or about the 30th day of March, A. D. 1888, filed said deed of assig-nment in the probate court of Tuscarawas county, Ohio, and was thereupon appointed and qualified as assignee of the plaintiff, and letters, as such were duly issued to him by said court? and said defendants, Solomon Mercer, William E„ Case and Moses B. Kennedy, thereupon duly executed a joint and several assignees ’ bond, a copy of which, duly certified according to law, is hereto attached, whereby they became jointly and severally bound to the state of Ohio in the sum of $2,500 subject to the condition that if the said Solomon. Mercer should administer the said trust in accordance with the provisions of the acts of the general assembly of the state of Ohio, regarding the mode of administering assignments for the benefit of creditors, and should faithfully perform all of his duties as such assignee according to law, then, said obligation should be void, otherwise the same was to be and remain in full force and virtue in law.
    “Thereupon, said Solomon Mercer entered upon said trust of said assignment, and as such assignee at once took possession of all the said property of plaintiff, and of the store room containing the same, and on or about the 10th day of April, A. D. 1888, by the oaths of W. E. Case, M. R. Kennedy and Samuel W. Mercer, who had been appointed appraisers by said probate court, proceeded to make an inventory and appraisement of said property, and the plaintiff having continuously, from time to time, from the time of making said assignment, demanded of said assignee, that he cause to be set off to her of said property, to the amount of $ 500 in lieu of a homestead, and "being ever ready as said defendant Solomon Mercer well knew, to select said property whenever said. Solomon Mercer, assignee, should cause the same to be set off to her; and said Solomon Mercer having ever refused to have any said property set of or to permit this plaintiff to select her exemptions therefrom, on or about the 10th day of April, A. D. 1888, -by the oaths of W. E. Case, M. B. Kennedy and Samuel W. Mercer, who had been appointed appraisers of said estate, by said probate court, proceeded to make an inventory and appraisement of said property, and plaintiff then demanded of said assignee and of said appraisers, that they should set off to her enough of said property, exempt to her by law, to amount to the sum of $500 in lieu of a homestead, and the said Solo-man Mercer, defendant, then and there well knew the plaintiff and her attorney, one A. J. Wilkin, were then and there ready to select said property so exempt to the plaintiff by law, and said Solomon Mercer, defendant, was then and there so notified of the fact, but said Mercer, disregarding said notice, and in violation of his duty as such assignee, refused to cause or permit any of said property to be set off to said plaintiff, and caused all of said property to be appraised and included in his inventory to the probate court, as assets of said estate; and said defendant, Mercer, after-wards, as such assignee, wrongfully and in violation of his duty as such assignee, notwithstanding-said demand of plaintiff, sold all of said property, including that exempt to plaintiff, receiving- therefor the sum of about $738.75, which moneys he now has in his hands as such assignee, and although frequently requested so to do refuses to pay to plaintiff any part of said proceeds.
    “Wherefore plaintiff prays judgment against the defendants in the sum of five hundred dollars, with interest thereon from the 10 th day of April, A. D. 1888.”
    A demurrer to the petition was overruled in the court of common pleas. After answer a trial was had resulting in a verdict and judgment for Mrs. Cunningham as prayed for. A bill of exceptions was taken and in the circuit court the judgment of the common pleas was affirmed. No further statement of the case is necessary to an understanding of the point decided.

      A. IF. Patrick and A. L. Neely, for plaintiffs in error.
    Section 5441, Revised Statutes of Ohio, provides that husband and wife living together may hold exempt $500.00 worth of his property in lieu of a homestead. Section 5319 gives this exemption, if at all, to a married woman, as against executions on personal judgments against her when she is not living- with her husband. Hill v. Myers et al., 46 Ohio St., 183.
    There is nothing in the statutes of Ohio, providing for and regulating voluntary assignments by insolvent debtors, for the benefit of their creditors, that at all indicates or from which it can be fairly inferred, that in proceedings thereunder the legislature intended an exemption of $500.00 to a wife or a married woman as such, in lieu of a homestead, but to the husband always.
    Mercer et al. v. Cunningham.
    It is not the policy of Ohio laws to duplicate homesteads nor' exempt property in lieu thereof ' to a family; hence, we find such condition expressly provided against as to a family homestead by section 5435, Revised Statutes. It was not a duty of Mercer, as assignee, to set off to Mrs. Cunningham this alleged exemption, but the duty of the appraisers appointed by the probate court exclusively, and made so by section 6348, Revised Statutes; therefore his omission, or even refusal to do so, would be no breach of the conditions of his bond. Kuhn v. Neiberg, 40 Ohio St., 631. And perhaps she had the additional remedy of replevin, after demand and offer to select, specifying the items of goods selected.
    All these remedies were ignored by the defendant in error, by reason whereof her rights in the premises, if she had any, have thereby been waived.
    The condition of the assignee’s bond as required by section 6335, Revised Statutes, is for the faithful performance of said assignee of his duties according to law, and such is the condition of the bond sued upon in this case.
    The assignee of an insolvent debtor is a trustee for the benefit of the assignor’s creditors, only, and has no duty to perform with regard to the assignor, unless in cáse there should remain in his hands a surplus of funds, after he has paid the costs and expenses of administering the trust and the debts of the assignor, which surplus he would be required to pay to the assignor. Best v. John

      son, 12 Am. St. R., 41; 78 Cal., 217; State v. Cutting, 2 Ohio St., 1; Lang v. Pike, 27 Ohio St., 498; Helt v. Whittier, 31 Ohio St., 476; Hall v. Williamson, 8 Ohio St., 17; Smith v. Huesman et al., 30 Ohio St., 662; McGoveny et al. v. The State of Ohio, 20 Ohio, 93; Williamson’s Adm’r v. Hall, 1 Ohio St., 190. The husband of the defendant in error is a necessary party plaintiff and should have been joined with her. The statute of Ohio, in force at the time the defendant in error made her alleged assignment, as hereinbefore alluded to, .did not give to the debtor, as it formerly did, $500.00 worth of property in lieu of a homestead, but gave it to husband and wife living together.

      James A. P. Richards and Joseph T. McCidlough, for defendant in error.
    By section 5441, Revised Statutes, property to the amount of $500.00 was exempt to Mrs. Cunning’ham. And under section 6348, Revised Statutes, should have been set off to her. The bond of an assignee, is intended for his good behavior and an action may be brought thereon by any person injured by his misconduct or breach of duty. Phillips, Assignee, v. Ross, 36 Ohio St., 458.
    The homestead act should be liberally construed. Sears v. Hanks, 14 Ohio St., 300.
    As shown by the testimony this assignee refused to permit the appraisers to set off to Mrs. Cunningham the amount of his property to which she was entitled in lieu of a homestead, but converted it all into money and now has the proceeds. The misconduct becomes the more flagrant when we reflect that this little stock of goods constituted, the entire possessions of this family consisting of husband and wife and four children. Had the set off been made as demanded, but little would have remained in the hands of the assignee and fees for services been small. We think that the charge of the court was especially favorable to the assignee.
   Shauck, J.

We assume that upon the facts alleged in her petition Mrs. Cunningham would have been entitled to an order .setting off to her in lieu of homestead the property demanded, if she had made application therefor to the probate court. The power to make such order in a proper case is conferred upon that court by section 6348, Revised Statutes. Kuhn v. Nieberg, 40 Ohio St., 631.

Omitting to invoke the exercise of that power, she acquisced in the sale of the assigned property by the assignee, and the application of its proceeds to the payment of her debts. The judgment under consideration affirms her right, under such circumstances, to resort to the court of common pleas to recover from the assignee and his sureties the value of property so applied.

In Dwyer v. Garlough, 31 Ohio St., 158, it was held that an assignment for the benefit of creditors did not exclude the jurisdiction of the court of common pleas of a subsequent suit to foreclose a mortgage upon real estate embraced in the assignment, because the statute then in force did not .authorize the probate court to order the premises to be sold free of the inchoate dower of the wife of the mortgagor. The special jurisdiction which the probate court was exercising over the assigned property was not exclusive, because it was not adequate.

The reason for that decision has been regarded in subsequent legislation and 'adjudication. All legislation affecting the jurisdiction of the probate court over assigned property has been with the view to its enlargement. The decisions of this court upon the subject sustain two propositions pertinent to this ease:

1. The filing of the deed of assignment and the qualification of the assignee confer upon the pro-, bate court jurisdiction of all the assigned property.

2. The jurisdiction so conferred is exclusive in all respects in which it is adequate. Sayler v. Simpson, 45 Ohio St., 141; Havens et al. v. Horton Jr., 342, ante.

The authority of the probate court to determine Mrs. Cunningham’s right to the exemption was ample, and the court of common pleas was without original jurisdiction.

Judgments of the circuit and common pleas courts reversed, demurrer sustained and petition dismissed.