text:
    The State of Ohio ex rel. Allison v. Garver et al. The State of Ohio ex rel. Allison v. Mackey et al.
    Acf “To limit compensation of county officers” in certain county— Is law of general nature and therefore invalid and void— Sec. 26, Art. 2 of Const. — Act to take effect when a majority of the voters declare in its favor — Is law passed upon approval of authority other than general assembly — And is therefore unconstitutional — Constitutional law.

    1. The act “to limit the compensation of county officers in Holmes county,” passed April 26, 1898 (93 O. L., 660), is a law of a general nature which does not operate uniformly throughout the state; and it is therefore in violation of the constitution, article 2, section 26. State ex rel. Guilbert v. Yates, ante, 546, approved and followed.
    2. An act of the general assembly not coming within the exceptions stated in the constitution, article 2, section 26, which is passed to take effect and be in force when a majority of the voters at an election shall declare in favor of a salary law, and if a majority of the voters do not so declare 'to be void, is passed to take effect upon the approval of authority other than the general assembly, and it is therefore unconsitutional and void.
    (Decided June 24, 1902.)

      Error to the Circuit Court of Holmes county.
    The first named case is a petition for a writ of mandamus against the defendants commanding them to perform the duties imposed upon them by law, namely, that the defendant Garver, as prosecuting attorney, shall examine and certify, and the defendant Tanneyhill, as probate judge, shall examine and approve the itemized statement of account of the relator for per diem, mileage and expenses as the relator avers he is entitled to, and for all proper relief.
    Petition set out the act 93 O. L., 660, and alleged that it is in violation of this constitution, Art. 2, Sec. 26.
    The second case named is an action in the name of the state by Theodore Allison as a citizen and taxpayer of Holmes county, to enjoin the defendants from receiving and paying money under an act entitled “An act to limit compensation for county officers in Holmes county,” passed April 26, 1898 (93 O. L., 660). Both the court of common pleas and the circuit court rendered judgment in favor of the defendants in error.

      Mr. W. Sbilwell, for plaintiff in error.
    Questions. Is this act 93 O. L., p. 660 in violation of Sec. 26, Art. 2, of the constitution of Ohio?
    First — In being on a subject of a general nature, yet local.
    Second — In submitting to a vote of the people the question of taking effect of the law.
    The provision for a vote takes the case out of the rule that otherwise the act takes effect on its passage. 7 Law. R. R., 3764; Barto v. Hinrod, 8 N. Y. (4 Seld.), 482.

      T3ie question is not operating under an act in force, a sample of which, in the same year is, general Sec. 2825, Rev. Stat., 93 O. L., 99. Every law requires the act of some person for its execution. Such are the cases of Railway Co. v. Commissioners, 1 Ohio St., 77; Gordon v. State, 46 Ohio St., 609; Hammond v. Haines, 25 Md., 541; Parker v. Commonwealth, 6 Pa. St., 507; Locke’s Appeal, 72 Pa. St., 491.
    Section 26, Art. 2 exempts from its operation school laws, while Sec. 30, Art. 2, and Sec. 13, Art. 7, specially provide for vote on taking effect in certain cases. Of this character are State ex rel. v. Commissioners, 5 Ohio St., 497; Noble v. Commissioners, 5 Ohio St., 524; Peck v. Weddell, 17 Ohio St., 271; Weaver v. Cherry, 8 Ohio St., 564.
    The views of all parties in constitutional convention of 1851, are found in 2 Deb., 218-228, 568, 579, 633, 807, 831, 833. Private corporation acts are on a different basis. Angell & Ames Corp., 81.
    Except in Kentucky on the prohibition question; Wisconsin and one or two other states having no constitutional prohibition, which have served from true principles. Sound reasoning, and authorities sustain our claim. Cooley on Taxation, 63; State v. Young, 28 Minn., 474; People v. Nevada, 6 Cal., 143; 6 Am. & Eng. Ency. of Law, 1023; Cooley Const. L., 137-146; Santo v. State, 2 Iowa, 165; State v. Geebrick, 5 Iowa, 491; State v. Weir, 33 Iowa, 134; State v. Morris (N. J.), 12 Al. Reg. (N. S., 32); Lammert v. Lidwell, 62 Mo., 188; 65 Ga., 645; State v. Simmons, 32 Minn., 540; Dampf’s Appeal, 106 Pa. St., 72; State v. Armstrong, 3 Sneed (Tenn.), 634; Territory v. Stewart, Wash., 98; People v. Clark, 47 Cal., 456; Richmond v. Fisk, 160 Mass., 62; Scofield v. Lansing, 17 Mich., 437; Bellinger v. Gray, 51 N. Y., 610; Robinson
      v. Dodge, 18 Johns. (N. Y.), 351; State v. Hahn, 474; Bremer v. Inhabitants, 62 Me., 62; State v. Copeland, 3 R. I., 33; State v. Wilcox, 45 Mo., 458; Wall, Ex parte, 48 Cal., 279; Lum v. Robertson, 71 U. S. (6 Wall.), 279; The Oliver, In re, 17 Wis., 681; State v. O’Neill, 24 Wis., 149; Smith v. Janesville, 26 Wis., 291, misconceived the Railway Co. v. Clinton Co., 1 Ohio St., 77, as is shown by quotation in Oliver, In re, 17 Wis., 681, from People v. Burr, 13 Cal., 357.
    So also in Commonwealth v. Weller, 14 Bush (Ky.), 218, the court misunderstood Cooley, p. 223. State v. Parker, 26 Vt., 357, is no authority as the act took effect in any event. See also as to the Vermont case of People v. Collins, 3 Mich., 343.
    The rule expressio unius, etc., in absence of prohibition of such submission would exclude such legislation.
    Indiana and Oregon have like provisions as Sec. 26, Art. 2, and in both states have been held to prohibit submission to a vote as to taking effect of the act. Maize v. State, 4 Ind., 343; State v. Monroe, 11 Ind., 484; Brown v. Fleischner, 4 Ore., 132.
    A vote is not a contingency contemplated which refers to operating under a law in effect. See same authorities.
    We also cite Starin v. Genoa, 23 N. Y., 439; Gould v. Town, 23 N. Y., 456; Bank of Rome v. Rome, 18 N. Y., 38.

      Mr. Wm. F. Garver, for defendants in error.
    I. Law is presumed valid.
    A doubt of the constitutional validity of a statute is never sufficient to warrant its being set aside. It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt. To be in doubt, therefore, is to be resolved, and the resolution must support the law. Cooley on Const. Law, 160; Supervisors v. Brogden, 112 U. S., 261; Railway Co. v. Commissioners, 1 Ohio St., 77; State v. Garver, 13-23 O. C. C., 140.
    II. A county salary law is constitutional. Cricket v. State, 18 Ohio St., 9.
    It is not essential to the exaction of fees that they should inure to the personal benefit of the officer. The officers are but the agents of the state for transacting the public business, and it is immaterial to those receiving their services whether the sum to be paid therefor goes to the officer or into the public treasury, pro-' vided no more is exacted than is just and reasonable for the facilities afforded and the service performed. State v. Judges, 21 Ohio St., 1.
    In the case of Hart v. Murray, 48 Ohio St., 605, the court, construing the act of May 15, 1886, placing the justices of the peace of Cleveland on a salary, says: “But it is contended that the act of May 15,1886, is a law of a general nature which does not have a uniform operation throughout the state, and is therefore in violation of Sec. 26 of Art. 2 of the constitution. The act, in our view, is local in its character. Its design is to regulate the amount of compensation to local officers, and does not come within the constitutional inhibition.”
    The system of compensation provided by the act is complete without reference to the penalties for official misconduct prescribed by Sec. 13, or to the effect to be given to an official bond by Sec. 14 of the act. Wherefore this system of compensation may be separated from and executed independently of these two sections and is not affected by the question of tbe constitutionality of either or both of them. Pearson v. Stephens, 56 Ohio St., 126.
    Since the decision in the Miami county case, Pearson v. Stephens, supra, similar salary laws have been passed for the following counties: Brown, 93 O. L., 574; Holmes, Ib. 660; Pickaway, Ib., 507; Tuscarawas, Ib., 513; Athens, 94 O. L., 697; Clermont, Ib., 408; Crawford, Ib., 581; Erie, Ib., 459; Fayette, Ib., 599; Highland, Ib., 412; Knox, Ib., 510; Lawrence, Ib., 549; Marion, Ib., 672; Meigs, Ib., 432; Morrow, Ib., 689; Muskingum, Ib., 681; Ottawa, Ib., 453; Putnam, Ib., 622.
    Thus the people of eighteen counties, relying upon that decision, have prevailed upon the general assembly to give them county salary laws. Will this court reverse that decision in face of the arguments advanced by the able judge who rendered that decision? And when they know that by so doing the county affairs of eighteen counties will be plunged into hopeless and almost inextricable confusion.
    III. When did the first twelve sections go into effect?
    The question is answered in two cases. State v. Perry Co. (Comrs.), 5 Ohio St., 497, and Noble v. Noble Co. (Comrs.), 5 Ohio St., 524. The court held that for the purposes of the vote, the acts took effect on their passage, though their operative effect was made dependent upon a vote of approval by a majority of the electors voting therefor. State v. Garver, 13-23 O. C. C., 140.
    Applying the above rule also disposes of plaintiff in error’s query as to whether Sec. 13 required a vote In the whole state, as to a local act. The relator in bis petition says, “The taking effect of said act is made to depend upon a vote of the electors of Holmes county.”
    Applying the above rule also disposes of relator’s claim that printing the question on the general ballot instead of a separate ballot was illegal. If relator had any objections against printing the question on the general ballot instead of on a separate ballot, he might have raised the question at the time by injunction, in which case he would not now be here contending that the salary law deprives him of his per diem under Sec. 897, Rev. Stat.
    IY. Submission to voters is constitutional.
    The decision of the circuit court in this case contains a very able and thorough discussion of this point and we cite State v. Garver, supra, and by reference make the same a part hereof. Compare the concluding paragraph with the conclusion in Gordon v. State, 46 Ohio St., 607.
    But it is not always essential that a legislative act should be a contemplated statute which must in any event take effect as law, at the time it leaves the hand of the legislative department. A statute may be conditional, and its taking effect may be made to depend upon some subsequent event. Cooley on Const. Lim., 337-138.
    It is worthy of consideration, however, whether there is anything in the reference of a statute to the people for acceptance or rejection which is inconsistent with the representative system of government. To refer it to the people to frame and agree upon a statute for themselves would be equally impracticable and inconsistent with the representative system; but to take the opinion of the people upon a bill already framed by representatives and submitted to them is not only practicable, but is in precise accordance with the mode in which the constitution of the state is adopted and with the action of many other cases. Cooley, Const. Lim., 141, note; Railway Co. v. Geiger, 34 Ind., 185.
    The legislature may make a local law depend for effect upon the will of all the voters of a locality, or a majority, or upon the assent of a few. Hobart v. Supervisors, 17 Cal., 23; People v. Burr, 13 Cal., 343.
    The act of March 1,1872, is not unconstitutional for the reason that by the provision of Sec. 3, the previous sections were to be void, unless the town or citizens of Skowhegan should perform the same conditions therein mentioned. Walton v. Greenwood, 60 Me., 356; State v. Parker, 26 Vt., 357.
    An act authorizing voters to vote for license or against license was held constitutional in Locke’s Appeal, 72 Pa. St., 491.
    A valid law may be passed, to take effect upon the happening of a future contingent event, even where that event involves the assent to its provisions by other parties. Mayor v. Clinet, 23 Md., 449; 42 Md., 71.
    The taking effect of a statute affecting a particular county alone may constitutionally be made dependent upon the popular vote of that county. Commonwealth v. Weller, 14 Bush (Ky.), 218; 29. Am. Rep., 407.
    The Holmes county salary law was perfect in all its parts and could be enforced without any other legislation, when it left the hands of the general assembly. Since its passage, two sessions of the general assembly have been held, in which the law could have been repealed or amended.
    An act of thedegislature affecting the people of the whole state is not invalid because by its terms it was to take effect only after it should be approved by a majority of the popular vote at a certain election. Smith v. Janesville, 26 Wis., 292.

      Cooley on Const. Lim., page 144, note, in commenting on above decision-, says: “This decision, though opposed to many others, appears to us entirely sound and reasonable.”
    Act of March 1, 1851, providing that the subscription to the capital stock of a railroad shall not be made, until the assent of a majority of the electors of the county is constitutional. Railway Co. v. Commissioners, 1 Ohio St., 77.
    An act authorizing a subscription to the capital stock of a railroad, provided for a vote of the people, as a condition precedent to this subscription, and was held constitutional. Cass v. Dillon, 2 Ohio St., 607.
    Ranney, J., dissents from opinion in Cass v. Dillon, supra, and cites clauses of constitution which he claims have been violated, but does not claim Sec. 26 of Art. 2, of constitution has been violated. Weaver v. Cherry, 8 Ohio St., 565; Dexter v. Raine, 10 Re., 25 ; 18 Bull.; 61; Newton v. Mahoning Co., 26 Ohio St., 618; Peck v. Weddell, 17 Ohio St., 271; Gordon v. State, 46 Ohio St., 607.
    Particular attention is called to the citation and discussion of authorities in case last cited, Gordon v. State.

    The Ohio decisions uniformly support the proposition that “The taking effect of a statute may constitutionally be made dependent upon’ the popular vote.” We challenge plaintiff’s attorney to furnish an Ohio, authority to the contrary.
   Davis, J.

The statute “to limit the compensation of county officers in Holmes county,” (93 O. L., 660) which is drawn in question in these cases, is in conflict with the first clause of Sec. 26, Art. 2 of the constitution. For the reasons for our conclusion on this point we refer to State ex rel. Guilbert v. Yates, ante, page 546, which reasons need not be repeated here. This act is unconstitutional, also because it is conditioned to take effect only upon the result of an election by the people (Constitution, Art. 2, Sec. 26, second clause). Section 13 of the act provides for a vote upon the proposition, “For the county salary law. Against the county salary law;” and then provides that if a majority of the votes cast on said proposition shall be in favor of a salary law the act “shall take effect and be in force” from and after a day named, otherwise' that the act should be void. The act cannot take effect under the Revised Statutes, Sec. 77, because it contains a provision as to the time when it shall take effect and be in force, if at all. Hence the taking effect, as well as the enforcement of the statute, is made to depend on the approval of another authority than the general assembly, namely, the will of a majority of the electors. The entire legislative power of the state is vested in the general assembly (Constitution, Art. 2, Sec. 1), and even without the limitation contained in Sec. 26, Art. 2, it could not be delegated. It was held in Railroad Co. v. Commissioners, 1 Ohio St., 77, 87, which was a case under the constitution of 1802, that the power of the general assembly to pass laws could not be delegated by them to any other body or to the people; and this proposition is abundantly sustained by numerous authorities cited in the brief of the plaintiff in error.

The cases of State ex rel. v. Commissioners, 5 Ohio St., 497; Noble et al. v. Commissioners, 5 Ohio St., 524; Peck v. Weddell, 17 Ohio St., 271, and Newton et al. v. Commissioners, 26 Ohio St., 618, were all cases in which it was required by the constitution (Art. 2, Sec. 30) before the taking effect of the laws that they should be submitted to the electors of the counties to be affected thereby and adopted by a majority of the electors voting at such election. In each of those cases the question was whether some other thing than the voting was necessary before the law could “take effect;” and the court held that the acts became laws when adopted by a majority of the electors of the county, but that the legislative intention was that the law should not be enforced until the condition precedent should be performed. In Trustees v. Cherry et al., 8 Ohio St., 564, the court held that the vote which was required was a condition precedent to make an assessment to pay for the grounds which the trustees were authorized by the act to purchase. In Gordon v. State, 46 Ohio St., 607, the act in question provided that it should take effect and be in force from and after its passage; but the question was whether the local option provision contained in the act rendered it unconstitutional. The court held that the act “was a complete law when it had passed through the several stages of legislative enactment and derived noné of its validity from the vote of the people. In all its parts it is an expression of the will of the legislative department of the state.” Our conclusion is that there is nothing either in principle or the decisions of this court contravening the view which we have expressed concerning the effect of Sec. 13 of the act (93 0. L., 660). It affects the whole act and the act is as if it never had been passed.

Judgment o>f the circuit court and of the court of common pleas Reversed.

Buricet, Shauck and Price, JJ., concur.

Spear, J., concurs in the judgment of reversal and in the second proposition of the syllabus.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    The State, on Complaint of Cook v. Cook.

      Proceedings in contempt — Against party refusing to comply with , . decree for alimony — Complaint need not allege party able to pay — Burden on defendant to prove inability — Money decree for alimony not a debt within constitutional inhibition against imprisonment — But is a punishable order under Sec. 56Jfi, Rev. Stat., for contempt — Enforcement ■ of alimony decree where case is remanded from circuit to common pleas court.

    1. In a proceeding in contempt against a party who has refused to comply with a money decree for alimony, it is not essential that the complaint allege that the party is able to pay the money. The decree imports a finding of the court that he is able to pay, and the burden is on him, by allegation and proof, to establish his inability.
    .2. A final money decree for alimony is not a debt within the purview of the constitutional inhibition against imprisonment for debt, but is such an order as that, under favor of section 5640, Revised Statutes, punishment as for a contempt may fallow a willful failure to comply with it. '
    ■3. Where such decree for alimony is rendered by the circuit court, and the cause remanded by that court to the court of common pleas for execution, a proceeding to enforce the judgment by attachment for contempt is properly brought in the court of common pleas.
    (Decided June 24, 1902.)
    Error to the Circuit Court of Crawford county.
    In an action pending on appeal in the circuit court of Crawford, from the common pleas of that county for alimony, wherein Ellen C. Cook, as wife of Edward W. Cook was plaintiff, and said Edward W. Cook, with others, was defendant, the circuit court duly found upon the evidence that the allegations of plaintiff’s petition concerning the extreme cruelty and gross neglect of duty charged against said Edward W. Cook towards her to he true, and that said Edward W. abandoned her without cause or excuse, and that in consequence thereof and of ill treatment on his part towards her, the parties had separated, and that by reason of the premises she was entitled to alimony out of the estate and property of the said Edward W., and to a judgment therefor. And the circuit court thereupon ordered, adjudged and decreed that said Edward W. Cook pay to said Ellen C. Cook, as her reasonable alimony, in money, the sum of $400.00, payable as follows: $50.00 in thirty days from the 3d day of October, 1896, and $50.00 in each six months thereafter, till the full amount of said sum of $400.00 is fully paid. And that in default of any such payment by him such payment or payments in default were to bear interest at six per cent, from maturity. The court also adjudged the costs of said cause against him. And it was further ordered by said circuit court that said cause be remanded to said court of common pleas for execution and to carry sáid decree of said circuit court into effect.
    More than thirty days having elapsed since the ma-turity of the said sum of $50.00 to be paid in thirty •days from October 3, 1896, and no part having been paid, nor the interest maturing thereon, nor any part of the said costs, said Ellen C. Cook filed her written charges of contempt against said Edward W. Cook in said common pleas court, and moved said court in writing to allow an attachment to issue against him, commanding the sheriff of said county to arrest him and bring him before said court, to show cause why he'should not be punished as for a contempt of court, for the reasons set forth in said motion.
    The court of common pleas, sustaining said motion, thereupon ordered the sheriff to arrest and bring said Edward W. Cook before the court on the 5th day of January, 1897, to show cause as aforesaid, and the court fixed the amount of his undertaking for his appearance on January 5, 1897, and such other times and places as the court might direct to answer said charges of contempt.
    The said Edward W. Cook, being arrested, refused and neglected to enter into any bond, but filed his. answer to said written charges, to which said Ellen C. Cook filed her reply. Trial was had on the charges and pleadings and evidence, and the court found the written charges of contempt against Edward W. Cook to be true, and that it was yet in his power to pay said alimony and to perform said orders of said circuit court remanded to said common pleas court for execution or other process, and the said common pleas court duly adjudged the said Edward W. Cook guilty of a contempt, and ordered him to be imprisoned until he should comply with said orders and judgment set forth in said written charges. And afterwards said Edward W. Cook filed his motion to vacate the judgment and order, which, upon a full hearing, was overruled. No bill of exceptions was, taken either upon the trial of the charges of contempt or upon the hearing of the motion to vacate the judgment and order of the common pleas.
    The defendant in error afterwards filed his petition in error in the circuit court, which court reversed the judgment of the common pleas upon the grounds that the complaint ‘ for attachment was insufficient in law, and that the common pleas had not. jurisdiction to entertain and grant the motion for attachment, and dismissed the complaint of the plaintiff filed in the common pleas.
    To reverse this judgment of reversal the present error proceeding is brought.

      Mr. L. C. Feighner, for plaintiff in error, cited and. commented upon the following authorities:
    Sections 549, 5239 and 5640, Rev. Stat.; Hulett v. Fairbanks, 41 Ohio St., 401; Sec. 6726, Rev. Stat.; Lockwood v. Krum, 34 Ohio St., 9; Conrad v. Everich, 50 Ohio St., 481; Effinger v. State, 5 Circ. Dec., 408; 11 C. C. R., 389 Fricke v. Fricke, 10 Circ. Dec., 203; 18 C. C. R., 433; Hand v. Hand, 12 Re., 202; 25 W. L. B., 214; Musser v. Stewart, 21 Ohio St., 353; Olin v. Hungerford, 10 Ohio, 270; Hurd v. Hurd, 65 N. W. Rep., 728; Holtham v. Holtham, 26 N. Y. Supp., 762; Andrew v. Andrew, 62 Vt., 495; Curtis v. Gordon, 62 Vt., 340; Erwin v. Schaffer, 9 Ohio St., 43; Concklin, In re, 3 Circ. Dec., 40; 5 C. C. R., 78; King v. Barnes, 21 N. E. Rep., 183; Rapalje Law Dic.; State v. Knight, 54 N. W. Rep., 412; Bishop Crim. Law (7 ed.), Sec. 241.

      Messrs. Finley & Gallinger and Messrs. Beer & Mon-net-te, for defendant in error, cited and commented upon the following authorities:

      Bolles v. Stockman, 42 Ohio St., 445; Mason v. Alexander, 44 Ohio St., 333; Sec. 5641, Rev. Stat.; Davis v. State, 50 Ohio St., 194; Railway Co. v. Sloan, 31 Ohio St., 1; Puterbaugh v. Smith, 19 Am. St. Rep., 30; Clark v. People, 12 Am. Dec., 183n; Langdon v. Circuit Judges, 76 Mich., 358; Deaton, In re, 105 N. Car., 59; Conrad v. Everich, 50 Ohio St., 481; Lockwood v. Krum, 34 Ohio St., 1; Pancost v. State, 8 Circ. Dec., 546; 15 C. C. R., 246; Bank v. Bank, 6 Ohio St., 254; White v. Gates, 42 Ohio St., 109; Edgarton v. Hanna, 11 Ohio St., 323; Kaderabek v. Kaderabek, 2 Circ. Dec., 236; 3 C. C. R., 419; Galland v. Galland, 13 Am. Rep., 167; Howell v. Fry, 19 Ohio St., 556; Secs. 5239 and 6726, Rev. Stat.; Cincinnati v. Railway Co., 56 Ohio St., 675; Hulett v. Fairbanks, 41 Ohio St., 401; Secs. 4954, 4959, 4967, 4968, 4970, 5235, 5373, 5641, 5642, 5644, 5645 and 5646, Rev. Stat.; State v. Chaffee, 6 Ohio, 150; Alderson on Judicial Writs, Sec. 4; Craig v. Fox, 16 Ohio, 568; Lowe v. State, 9 Ohio St., 337; Anderson’s Law Dic., 242; Works on Courts and their Jurisdiction, 498; 1 Thompson on Trials, Sec. 124; Darly’s case, Term Sup. Ct., 3 Wheeler, C. C., 7; Robinson v. Kious, 4 Ohio St., 593; Dunlap v. Robinson, 12 Ohio St., 530; Eaton v. French, 23 Ohio St., 560; Heffner v. Scranton, 27 Ohio St., 579.
   Spear, J.

The ground of reversal by the circuit ■court was twofold: one that the complaint is insufficient in law, and the other that the common pleas had not jurisdiction to entertain and grant the motion.

Was the complaint sufficient in law? The specific objection is that it does not allege that it was then in the power of the defendant to perform the act, that is, pay the money. We are of opinion that the objection is not good. The order of the trial court fixing the amount of the alimony to be paid was ■an imperative order. It was made, presumably, after due inquiry into the defendant’s financial condition, and was fixed at an amount which the court found was reasonable and that the defendant would be able to pay. It being shown, therefore, that the defendant had not obeyed the order of the court, a prima facie case, at least, had been made that he was in •contempt provided the failure to satisfy a final decree for alimony could be made the basis of a proceeding in contempt. It followed that the burden was upon the defendant to show that it was not in his power to obey the order, and, if this be so, then it would also follow that the complainant was not required to allege such want of ability in the complaint.

Nor is this an unreasonable requirement. Tbe defendant’s financial condition and ability to pay were peculiarly witbin bis own knowledge. They could not be known with tbe same certainty to tbe complainant, nor could sbe easily produce evidence to maintain tbe proposition were tbe burden of proof placed upon ber. Hurd v. Hurd, 63 Minn., 443; Andrew v. Andrew, 62 Vt., 495; Holtham v. Holtham, 6 Misc. (N. Y.), 266.

But if tbis were not so, still no substantial injustice was wrought in tbis case by tbe bolding of tbe common pleas. In bis answer tbe defendant set up, in affirmative terms, that be bad no means wherewith to pay and that be was utterly insolvent. Tbis was denied by tbe reply. Tbe issue thus was presented, and tbe same being tried tbe court found it was in tbe power of tbe defendant to pay tbe alimony but that be still refused to do so, and adjudged accordingly. So that, in either view, tbe bolding of tbe common pleas on tbis phase of tbe case would not be reversible error.

A more serious question is involved in tbe contention of defendant in error with reference to tbe power of tbe court to punish for contempt one who fails to pay a final judgment for alimony. Tbe contention is that money decreed for alimony, made upon final trial, is not such an order that punishment as for a contempt may follow a failure to comply with it. It is insisted, in support of tbis proposition, that tbe judgment for alimony is a debt, and that imprisonment for debt does not obtain in Ohio. Of course if tbis proposition is true tbe conclusion follows by force of tbe constitutional provision, section 15, article 1: “No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud.” But is the claim a debt within the meaning of this clause? It is described as a judgment, but it is not supposed that the term applied to the adjudication aids much in defining its. real character. Many claims result in judgment in some form which do not have their origin in debt.

Authority for the provision for alimony to the wife rests upon two clauses of our statutes. That where-divorce is granted is found in section 5699, and is:. “When divorce is granted by reason of the.aggressions of the husband, the wife * * * shall be allowed such alimony out of her husband’s real and personal property as the co,urt deem reasonable, having due regard to the property which came to him by marriage, and the value of his real and personal estate at the time of the divorce, which alimony may be allowed to her in real or personal property, or’ both, or by decreeing to her such sum of money, payable either in gross or in installments, as the court deems just and equitable.” That where alimony alone is granted is given in section 5703 thus: “The court shall upon satisfactory proof of any or all of the charges in the petition * * * give judgment in favor of the wife for such alimony out of her husband’s real or personal property as is just and equitable, which may be allowed to her in real or personal property, or both, or in money payable either in gross or in installments.” It seems manifest that so far as the obligation of the husband enters into the consideration and affords a basis for the court’s action, it is not a debt in the sense of a pecuniary obligation; it arises from a duty which the husband owes as well to the public as to the wife, but it is not upon any specific contract; nor is the proceeding in which the adjudication is had a civil action. The liability originates in the wrongful act of the husband against the consequences of which the public as well as the wife has the right to be protected. Beyond this the provision for alimony is an allowance. It is in the nature of a partition. Recognizing the right of the wife to participate in the accumulations which are presumably the result of their joint efforts and joint economies, and having in mind at the same .time any property which may have come to the husband by the marriage, the law wisely awards the wife a just and equitable proportion of the whole, and for purposes of convenient execution and to meet all varying situations, this allowance may be made either in real or personal property, or both, or in money, payable in .gross or in installments, as to the court may seem reasonable. The court does not decree alimony as a debt to the wife, or as damages to be paid to her by her late husband, but as a part of the estate standing in his name in which she has a right to share, fixed by the court in its discretion and thus appropriated to her, and to which she thereupon becomes legally entitled. The withholding of this allowance, therefore, by the husband, when able to respond, is a refusal to abide by and perform the order and decree of the court, and it is difficult to see why such refusal should not be punished as a contempt for the same reason and upon the same grounds that orders and decrees of courts of equity, in injunction and the like, are in like manner enforced. Our statute, section 5640, provides punishment as for a contempt for “disobedience of, or resistance to a lawful writ, process, order, rule, judgment or command of a court,” etc. This enactment may not receive a literal interpretation, but may properly be restrained as in Bank v. Becker, 62 Ohio St., 289, and still have application to a proceeding resting on a decree for alimony. In that case, treating of debts, it is held that: "Money obligations, resting upon contract, express or implied, and judgments rendered thereon, are debts within the purview of section 15 of the bill of rights, which forbids imprisonment for debt in civil actions.” We are not to. be understood as meaning that this holding, directly supports the proposition that a decree for alimony is not a debt. It is, however, a carefully considered declaration in a case involving the general question,, and is entirely consistent with that proposition.

It has been supposed by some that the power of' punishment for contempt for refusing to pay alimony is confined to orders for payment of alimony pendentelite, such orders being for the maintenance of the wife during the litigation and the payment of her necessary expenses in conducting it; and it is apparent that the refusal to comply with such orders does, tend to obstruct the course of justice, an incident not. present in the case at bar. We are of opinion that this distinction simply furnishes an additional reason for the enforcement of the order, but does not. differentiate the two cases in principle.

It is held in Conrad v. Everich, 50 Ohio St., 476, that, a decree for alimony in money payable in gross will operate per se as a lien on lands and may be enforced by execution, and this case is cited as establishing that a decree for alimony is a debt. We think it is not authority for the proposition. True the opinion cites some cases wherein it is held that such decree creates a debt of record, but it is to be noted that the learned judge who reported that case favors the construction that the right to alimony is based upon the duty of the husband to afford support to the wife and a paramount obligation springing out of a sacred relation which, when it passes into judgment, should carry with it the well known binding force of judgments at law. In other words, there should be afforded to the injured party all remedies practicable for the enforcement of her rights and the collection of her just demands. This, we think, falls short of holding that alimony is a debt within the meaning of the constitution. See, also, Lockwood v. Krum, 34 Ohio St., 1.

We are of opinion that the decree for alimony is not a debt within the meaning of the constitutional inhibition; that it comes fairly within the provision of section 5640, supra, and that a refusal to comply with the order, the party being able, may be punished as for a contempt. Lewis v. Lewis, 8 Ga., 706; Wightman v. Wightman, 45 Ill., 167; Hurd v. Hurd, supra; Andrew v. Andrew, supra; Lyon v. Lyon, 21 Conn., 185; Lansing v. Lansing, 41 How. (N. Y.), 248; Ex Parte Perkins, 18 Cal., 60; Dwelly v. Dwelly, 46 Me., 377; Rapalje on Contempts, Sec. 36; Stewart’s Marriage and Divorce, Sec. 378; 4 Ency. P. & P., 803; 2 Bishop’s Marriage and Divorce (6 ed.), section 498. See, also, Musser v. Stewart, 21 Ohio St., 353.

It remains to consider whether or not the proceeding in contempt was instituted in the right court. Did the defendant’s conduct put him in contempt of the judgment of the common pleas, or was it of the circuit court? Provisions of the statute having application are:

“Section 549. The supreme court or the circuit court may remand its final decrees, judgments or orders, in cases brought before it on error or appeal, to the court below, for the specific or general execution thereof, as the case may require, and may also remaud causes which so come before it to the inferior courts for further proceedings therein.”

“Section 5239. When the circuit court makes a final order, or renders a final judgment, in cases brought before it on appeal, it may enforce the same by process issued therefrom, or may remand the same to the common pleas for execution or other process; the clerk of the circuit court shall certify the same to the common pleas, and the clerk of the common pleas court, on receipt of the certified transcript shall immediately enter the same on the journal; and the judgment or orders so entered, unless otherwise directed by the circuit court, shall for the purpose of execution and other process, stand as the judgment of the common pleas court.”

“Section 6736. When a judgment or final order is reversed, either in whole or in part, in the common pleas court, the circuit court or the supreme court, the court reversing the same shall proceed to render such judgment as the court below should have rendered, or remand the case to the court below for such judgment; * * * the court reversing or affirming such judgment or final order, shall not issue execution in causes that are so brought before it on error, on which it pronounces judgment as aforesaid, but shall send a special mandate to the court below, as the case may require, for execution thereon, and the court to which such special mandate is sent shall proceed in the same manner as if such judgment or final order had been rendered therein,” etc.

The question is not without difficulty. Much may be said, and well said, perhaps, on either side, and authorities are in apparent conflict. We do not enter into a discussion of it here, but content ourselves with the announcement that, considering all the statutes bearing upon the question, and especially having in mind the general policy of our legislation in the direction of entrusting the enforcement of all final judgments and decrees of reviewing courts to the court of general jurisdiction, to-wit, the common pleas, this court is of opinion that the better view is that it is the purpose of the statute to vest in that court power to enforce decrees remanded to it of this character by all appropriate process and proceeding, and that, therefore, the proceeding in contempt was in this case properly instituted in the common pleas. See Hulett v. Fairbanks, 41 Ohio St., 401.

Grounds other than those assigned by the circuit court are urged by counsel for defendant in error as justifying the reversal of the judgment of the common' pleas. We have considered the points presented, but are unable to agree that they afford sufficient ground for reversal.

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

Judgment reversed.

Burket, Davis and Shauck, JJ., concur. Price, J., not sitting.


author: Burket, J.

text:
    The Southern Gum Company et al. v. Laylin, Secretary of State.

      An excise tax may be imposed by the state, when — A franchise tax may be imposed upon domestic and foreign corporations —State is sovereign except as limited by XJ. S. Constitution —Limitation of such taxes not to exceed reasonable value— Determination of value vested in general assembly and finally in court — Tax of one-tenth of one per cent, on capital stock — Under act of April 11, 190%, is valid — Constitutional law.

    1. The state is a sovereignty, with sovereign powers, except as limited by the constitution of the United States.
    2. While there is no express limitation upon the power of the general assembly to tax privileges and franchises,, such power is impliedly limited by those provisions of the constitution which provide that private property shall ever be held inviolate, but subservient to the public welfare, that government is instituted for the equal protection and benefit of the people, and that the constitution is established to promote our common welfare.
    '3. By reason of these limitations a tax on privileges and franchises can not exceed the reasonable value of the privilege or franchise originally conferred, or its continued annual value hereafter. The determination of such values rests largely in the general assembly, but finally in the courts.
    4. An excise tax may also be imposed upon corporations to compensate the state for the additional burden caused by the aggregation of capital in an artificial body, and the exemption, in part at least, of the individuals composing such body from liability for its debts.
    5. A franchise tax may be imposed by the general assembly upon corporations, both domestic and foreign, doing business in this state.
    6. The tax of one-tenth of one per cent, on the subscribed or issued and outstanding capital stock of corporations as provided for in the act of April 11, 1902, entitled “An act to require corporations to file annual reports with the secretary of state, and to pay annual fees therefor,” is a franchise tax, and not a tax on property. Said act is a valid constitutional law.
    (Decided June 24, 1902.)

      Error to the Court of Common Pleas of Franklin county.
    The plaintiff in error, also plaintiff below, began an action in the court of common pleas in its own behalf, and in behalf of forty-four other corporations similarly situated, to recover from Lewis C. Laylin, secretary of state, money paid to him under duress and under protest accompanied with notice that an action would be brought for the recovery of the same, averring that payment was made to escape a heavy penalty imposed by the act known as the Willis law, passed April 11,1902, entitled “An act to require corporations to file annual reports with the secretary of state and to pay annual fees therefor.”
    The petition avers that when the plaintiff was incorporated in 1901, it paid to the secretary of state as required by section 148a, Revised Statutes, twenty-five dollars, its charter fee, and two dollars, its certificate of subscription fee, and has listed all its property for taxation and paid said taxes, and it is now assessed for further taxation on all its property, and that it will pay such taxes when the same shall become due.
    The said Willis law requires corporations to file an annual report in May of each year with the secretary of state, and to pay to him a fee of one-tenth of one per cent, upon the subscribed or issued and outstanding capital stock of said corporation, and to be not less than ten dollars in any case.
    The petition contains the following averments:
    “Plaintiff is advised and believes, and therefore charges and avers that said defendant claims that such charge and exaction of one-tenth of one per cent, of the capital stock of said corporation and the additional charge and exaction of one-tenth of one per cent, upon the subscribed or issued and outstanding capital stock of all of said corporations in behalf of which this action is brought, was and is a legal fee fixed, by law and required to be made to the secretary of state under said act of the general assembly as above set out.
    “Whereas, the plaintiff claims and will to the court insist, that this enactment is a statute merely attempting to levy a tax and raise a revenue for the general purposes of the state, and that the same was and is applied to plaintiff corporation and all other corporations organized under the laws of Ohio for profit wholly inoperative and void and is contrary to the constitution of the United States and the constitution of the state of Ohio.”
    The plaintiff prays that the secretary of state may be enjoined from paying said money into the state treasury, as the act requires him to do, and for a judgment in behalf of itself, and the other corporations for the recovery of said money so paid.
    The secretary of state demurred to the petition, claiming that it does not state facts sufficient to warrant the relief prayed for.
    The court of common pleas sustained the demurrer and dismissed the petition. On motion of plaintiff leave was granted to file a petition in error in this court, which was accordingly done.

      Messrs. McCarthy & McDoivell and Mr. Charles C. Upham, for plaintiffs in error.
    From the above definitions as to what a tax is, we gather two necessary and predominant elements.
    First — That it is levied upon all the property of a given class, and

      Second — That it goes to the general revenue, fund of the state.
    This exaction is imposed upon the property of domestic corporations. It is levied upon the subscribed or paid up and outstanding capital stock of corporations.
    What is paid up capital stock of a corporation but its assets? The general statute on this subject provides that the terms “Personal Property” shall be held to mean and include, second, “The capital stock, individual profits and all other means in forming part of the capital stock of every company,” etc. Revised Statutes, Sec. 2730.
    Section 2744, provides, that corporations shall list for taxation “All the personal property, which shall be held to include all such real estate as is necessary to the daily operations of the company, moneys and credits of such company or corporation within the state at the actual value in money,” etc.
    Section 2746, provides, that stocks shall be listed by the person owning the same, but no person shall be required to list for taxation any share or shares of stock of any company when the same is taxed in the name of such company.
    From the foregoing sections of the statute it is clear that the capital stock of a corporation is personal property, that it is subject to taxation, that it may be taxed either by levying the tax against the corporation itself or against the person owning the shares of stock, but that if it is paid by the corporation, it cannot then be levied against the person so owning the stock. These sections therefore clearly provide for the levying of a tax on the capital stock or property representing the same.

      It lias been held by this court that the personal property which a corporation, organized and doing business under the laws of this state, is required to list for taxation embraced the capital stock of the corporation, and such being the case, an owner of the shares of the capital stock of said company was not required to list his shares for taxation. Jones v. Davis, 35 Ohio St., 474.
    Thus it will be seen that this law has both of the principal elements of a tax. We may conceive that taxes may be levied both on property and on occupation, but they must be so laid that they do not both fall directly upon the same property. This is laid down distinctly in Cooley on Taxation. In illustrating this doctrine he says: “To tax a merchant upon his stock as property, and also upon his gross sales, may be burdensome, but it is not unconstitutional when it is not expressly forbidden by the constitution. The two taxes are not identical, and though they may operate unjustly in particular cases, they are supposed to be imposed because the general result is equal and just.” Cooley on Taxation, p. 385.
    But how can it be said that the two taxes, the general tax against all corporate property levied under the general tax laws of this state, and the tax imposed by this act are not identical? If the capital stock of a corporation, and the property in which it is invested are identical, then one tax is laid upon the property and the other laid upon the capital stock, which is the same thing, constitutes double taxation. Constitution, Art. 12, Sec. 2; Railway Co. v. State, 49 Ohio St., 189.
    The case of the Railway v. State, supra, we think, is absolutely decisive of the case at bar. Ashley v. Ryan,
      49 Ohio St., 525; Vandenbark v. Mattingly, 62 Ohio St., 28; Constitution of Ohio, Sec. 4, Art. 13.
    Suppose we concede, for the purpose of the argument that this law does not impose a tax upon property, but that it is a tax on the franchise, a charge for the privilege of doing business, then it is void under the holding in the Bank v. Hines, 3 Ohio St., 1.
    Taxing by uniform rule requires uniformity in the mode of assessment upon taxable valuation. Uniformity in taxing implies equality in the burden of taxation; and this equality of burden cannot exist without uniformity in the mode of assessment as well as in the rate of taxation. Bank v. Hines, 3 Ohio St., 15; Cleveland Tr. Co. v. Lander, 62 Ohio St., 272.
    In the case of McCurdy, Guardian, v. Prugh, Treasurer, 59 Ohio St., 465, it is held that Sec. 2, Art. 12, of the constitution, provides for two things: First, the rule for fixing the rate of taxation; and second, the rule for valuing property.
    It has been said that this court has already decided the question here raised, holding in substance that domestic corporations can be so taxed. We do not so understand the decisions of this court. In the case of Express Co. v. State, 55 Ohio St., 80, the court says that the question of so taxing a domestic corporation, is not before it.
    This latter case also distinctly affirms the case of Telegraph Co. v. Mayer, 28 Ohio St., 521, which was a case arising upon the question of the right to tax foreign corporations.

    In certain cases it has been held by this court that the state may impose a burden upon certain corporations and employments with a view to the protection of the health of the citizens or for the preservation of good order, or to secure the safety, convenience or general welfare of the community, but that has only been done so far as domestic corporations were concerned, when the state, county or municipal corporation was put to some expense by reason of the management and control of said business or occupation. Adler v. Whitbeck, 44 Ohio St., 545.
    Now in the act in controversy, what is there tending to show that the carrying on or the management of the various corporations in the state, are a burden to the general public?
    And in all other cases where a tax, assessment or fee of this kind has been sustained, it has been upon the hypothesis of protecting the people or the public from increased burdens growing out of the carrying-on of the various businesses, and in this connection we refer to the case of The Gas Light & Coke Co. v. State, 18 Ohio St., 238; Telegraph Co. v. Mayer, 28 Ohio St., 534; Holst v. Roe, 39 Ohio St., 340, and in the liquor cases, Frame v. State, 53 Ohio St., 311, and Butzman v. Whitbeck, 42 Ohio St., 223; and also this case of Adler v. Whitbeck, 44 Ohio St., 545.
    In Railway Co. v. State, 49 Ohio St., 189, the Supreme Court in passing on the act of April 15, 1889,. requiring every corporation or company operating a. railroad or any part of a railroad within this state, to-pay to the commissioner of railroads and telegraphs a fee of one dollar per mile, etc., the court says: “What is this statute? Its constitutionality must be-determined by its operation. It provides in terms, that there be placed upon each mile of railroad track within this state an exaction of one dollar per annum. The statute calls it a fee, but its nature is not affected by the name that may be assigned to it. * * * That it is such a tax, we think there can be little, if any, doubt. A tax is a pecuniary burden for the support of the government; burdens or charges imposed by the legislative power of state upon persons or-property to raise money for public purposes.” 2nd Bouvier, 705.
    Now while it is true that act as passed on by the court at that time, was declared unconstitutional, because it was a tax on property to-wit: — a dollar for each mile of track, the doctrines laid down therein are entirely applicable to the case at bar.
    Section 6 of this act is unconstitutional.
    J This section seeks, if it has any effect, to constitute-a tribunal outside of the regular judiciary of the state,, to try any questions that may arise in the application of this law. We think the legislature has no power to transfer from the regular judicial tribunals, the right, to so try and determine these questions, and if it had, the law is eminently unfair,'because it appoints as one-of the judges of the tribunal, the attorney general whose duty it is to represent the state in such cases. Zanesville v. Zanesville Telegraph & Tel. Co., 64 Ohio St., 67.
    The holdings in other states are not by any means uniform. The most notable case probably in the books in recent years in favor of this law, is found in 118 Ala., 143. This case holds in substance, that the property of corporations may be taxed under the general laws of that state at the same rate as other-property, and that an additional fee, assessment or tax may be laid on the capital stock -of corporations. It is impossible to see how that could be done in Ohio,, having in view the holding of this court, in Jones v. Davis, 35 Ohio St., 474. We do not see how the-Alabama case can be reconciled with the holdings, in this state.

      Among the cases holding the opposite rule, and the one for which we contend, and with which the Ohio doctrine is reconcilable, we cite the following text and authorities supporting it: Lewiston Water Power Co. v. Asotin Co., 64 Pac. Rep., 544; 24 Wash., 371; People v. Badlam, 57 Cal., 594; Ridpath v. Spokane Co., 63 Pac. Rep., 261.
    ■ Mr. J. M. Sheets, attorney general, Mr. A. Squire and Mr. John W. Warrington, for defendant in error.
    We maintain that the fee authorized by the act and complained of herein, is a charge upon the corporate franchise to do business or to operate according either to statutory powers conferred or to consent given through comity.
    The title of the act shows a purpose to require corporations to “file annual reports with the secretary of state and to pay annual fees therefor,” in addition to taxes on their ordinary property. The last paragraph of the first section requires the secretary of state to charge and collect in respect of domestic corporations for profit, “a fee of one-tenth of one per cent, upon the subscribed or issued and outstanding capital stock.” The last paragraph of section 2 requires the same official in respect of foreign corporations for profit doing business in Ohio, to “charge and collect * * * f0r the privilege of exercising its franchise in Ohio, annually, one-tenth of one per cent, upon the proportion of the authorized capital stock of the corporation represented by property owned and used and business transacted in Ohio.”
    Consideration of this language cannot but satisfy every one that if we regard the fees thus authorized as a species of taxation even for revenue, the intent of the legislature was not to select a new object of taxation except so far as it relates to a new class of corporations. The same object of taxation has been employed during many years for raising revenue, to-wit: corporate franchises and privileges. A change in class of corporations, or the inclusion of a greater number of corporations, cannot change the principle involved or the nature of the power exercised. The result is that the object of this class of taxation is not property; it is a franchise or privilege. It is not even capital stock in the sense of shares of stock. The corporation is not the owner of the shares; its stockholders are. Leo, Treas., v. Sturges, 46 Ohio St., 153.
    It is settled that Sec. 2, Art. 12 of the constitution does not vest power to tax, but only prescribes a mode for the exercise of the power to tax property, and only that character of property which the section specifies. It is settled that the power of taxation abides in the legislative grant; and that there is no mode prescribed by the constitution for the taxation of objects other than property. Ashley v. Ryan, 49 Ohio St., 504; Marmet v. State, 45 Ohio St., 63; State v. Ferris, 53 Ohio St., 314.
    But the decisions of this court extend further. They seem to us to cover and uphold the very kind of statutory charge or tax now in dispute. Telegraph Co. v. Mayer, 28 Ohio St., 521; Hagerty v. State, 55 Ohio St., 613, upheld the collateral inheritance tax act, which imposed a tax upon the right or privilege of receiving property by inheritance.
    In Express Co. v. State, 55 Ohio St., 69, the doctrine was recognized, though it was not conceded to be directly involved, that the legislature might, in the exercise of the taxing power for general revenue, select a single business and impose upon the persons engaged in it, an excise tax in .addition to a tax upon tlieir property, for the privilege of carrying on that business.

      Express Company v. State, was recently approved and followed in Car Line v. Guilbert, 64 Ohio St., 614; Insurance Co. v. New York, 134 U. S., 594.
    We beg to call attention to the entire opinion of Mr. Justice Field in that case. Ashley v. Ryan, 153 U. S., 436.
    We may safely deduce from these, decisions, all growing out of Ohio legislation:
    First, that the. old theory of property as defined in Sec. 2, Art. 12 of the constitution being the sole basis, of taxation for general revenue, is obsolete and completely overthrown.
    Second, that franchises' and privileges received or enjoyed through either grant or comity of the state,, are subject to conditions imposed by general law and are legitimate objects of taxation for general revenue.' No distinction is made as to franchises or privileges, received or enjoyed by domestic and foreign corporations; indeed, in the absence, as in the present statute, of legislative discrimination, it would be as irrational,, to assert such a distinction, as it plainly would be, in the absence of legislative discrimination, to urge one between a citizen and a foreigner touching their liability respectively to a condition imposed as a tax upon the privilege to inherit or succeed to property.
    Let us now examine some decisions rendered outside of Ohio upon legislative and constitutional provisions kindred to our own. Cable Company v. Attorney General, 46 N. J. Eq., 270.
    It is evident that shortly after the passage of the annual tax or fee law in New Jersey, the same resistance was made to it as has been made here. The case-last cited was decided in 1889. The question came up in another form in 1892 before the New Jersey Supreme Court. Honduras Commercial Co. v. State Board of Assessors, 54 N. J. L., p. 278.
    The question was again before the Supreme Court of New Jersey in 1893, where another ingenious effort was made to escape the tax. Bridge Company v. State Board of Assessors, 55 N. J. L., p. 529; Marsden Co. v. State Board of Assessors, 61 N. J. L., 461; Commonwealth v. Hamilton Manufacturing Co., 12 Allen, 298; Commonwealth v. Cutter, 13 Allen, 393; Manufacturers Ins. Co. v. Loud, 99 Mass., 146; Commonwealth v. Bank, 123 Mass., 493; Railway Co. v. Board of Com’rs Brunswick Co., 72 N. C., 10; Clark & Marshall on Private Corporations, Vol. 1, Sec. 286 (b); Scottish U. and N. Ins. Co. v. Herriott, 109 Iowa, 606; People v. Home Insurance Co., 92 N. Y., 328.
    The analogy of this class of decisions is apparent when we consider that the claim there made was that a tax nominally upon the capital stock was a tax upon government bonds held by the corporation, while the claim here is that a similar tax is a charge upon the property of the plaintiffs. The complete answer there was, as we submit it should be here, that the tax is upon the franchise; and it is difficult to perceive any reason why such franchises should not be taxed, except' only that through the grace of the state they have not been taxed. We may be permitted to adopt language here of Judge Fullerton, in Monroe Savings Bank v. Rochester, 37 N. Y., at page 365.
    In Pennsylvania, the following have been held to be franchise taxes: Tax on a mining company measured by the number of tons of coal mined, Coal Co. v. Commonwealth, 79 Pa. St., 100; a tax on net earnings, even though a part of the earnings was derived from nontaxable securities, Philadelphia Contributionship v.
      Commonwealth, 98 Pa. St., 48; a tax on capital stock as such, Carbon Iron Co. v. Carbon Co., 39 Pa. St., 251; a tax measured by dividends, Phoenix Iron Co. v. Commonwealth, 39 Pa. St., 104.
    In Glasgow v. Rouse, 45 Mo., 479, it was held that the tax on income was a franchise tax, not a property tax, hence not in conflict with the provisions of the-constitution of that state requiring taxes to be levied on property according to its true value in money.
    In Massachusetts it is held that a tax of a certain per cent, on the capital stock of a corporation paid in is a franchise tax as distinguished from property tax. Bank v. Apthorp, 12 Allen, 252. Also a tax on savings banks measured by their deposits. Commonwealth v. Bank, 5 Allen, 428, and Commonwealth v. Bank, 123 Mass., 493. To the same effect see also, Coite v. Society for Savings, 32 Conn., 173.
    This case was taken by writ of error to the Supreme; Court of the United States. Society for Savings v. Coite, 73 U. S. (6 Wall.), 594.
    In Commonwealth v. Standard Oil Co., 101 Pa. St., 119, the court draws a distinction between franchise and property tax.
    Corporations by the terms of the act in question are' required to pay annually one-tenth of one per cent, on their capital stock. This is an imposition of a tax “according to nominal value.” It matters not whether the stock is worth eight hundred (800) per cent, of its. face value e. g. Standard Oil stock), or whether it is not worth one per cent, of its face value, the tax is the same, one-tenth of one per cent.
    We wish to again suggest, the stock as such is not taxed at all. 'It is not taxed in the hands of its owners. —the stockholders are its owners, the corporation is. not. Reference is made to the capital stock, not as. descriptive of the subject to be assessed, but as furnishing a basis of computing the amount of tax to be paid by the corporation. The subject-matter to be taxed is the corporation, and the amount of capital stock furnishes the basis for computing the amount. Hamilton Company v. Massachusetts, 6 Wall., 632, is a case Avhere the question as to whether the levying of a certain per cent, on the amount of deposits of a savings association was a franchise tax, or a property tax.
    Plaintiffs’ claim, at most, is that both their corporate property and franchises cannot be taxed; for, they say, this would be double taxation. Suppose that be true. What of it? Express companies have been assessed for years under the provisions of the Nichols law for their property taxes, R. S., Sec. 2777, 8, 9, 80; State v. Jones, 51 Ohio St., 492, and at the same time they have been compelled to pay an annual franchise-tax of two per cent, on their gross receipts. R. S. Secs. 2780-1 to 6; Express Co. v. State, 55 Ohio St., 69.
    It is unnecessary to remind this court of the fact that in appraising the express companies under the Nichols law the franchise to operate enters largely into the valuation. Indeed, the horses, wagons, safes, office fixtures, etc., constituting all the tangible property of these companies, would not amount in value to ten per cent, of the value as placed on them under the provisions of the Nichols law. They are appraised as a unit — as a going concern. The value of the stock is the criterion for their appraisement — not the value of the tangible property of the companies. Hence, of necessity, the value of the franchise to operate enters very largely into the assessment upon which the property tax is levied, and yet express companies must, in addition thereto, pay two per cent, on their gross receipts as a franchise tax.
    Companies required to pay a franchise tax of one-tenth of one per cent, on their capital stock under the provisions of the Willis law are appraised for their property taxes under the provisions of Sec. 2744, Rev. Stat. Hence, only their tangible property is assessed. Under this method of appraisement there are many corporations which are appraised at sums not to exceed one-tenth of the value as measured by the market value of the capital stock. The franchise to be a corporation of such companies is not considered in making their returns for taxation under the provisions of Sec. 2744. Hence, they cannot successfully maintain that the franchise to be a corporation has been taxed in any other manner than as provided in the act now ■under review.
    Let it be understood, however, even if this were double taxation, they could not complain.
    If it be claimed that the classification of corporations made in the act in question is a discrimination forbidden by the state and federal constitutions, Express Co. v. State, 165 U. S. 228; Bell's Gap Railroad v. Pennsylvania, 134 U. S., 232; Pacific Express Co. v. Seibert, 142 U. S., 339; Kentucky R. R. Tax Cases, 115 U. S., 321; Home Insurance Co. v. New York, 134 U. S., 594.
    The policy pursued in Ohio is to classify its objects of taxation, when the nature of their use, or the nature .of business engaged in, requires classification in the judgment of the legislature, in order to secure equality of the burdens of taxation, e. g. public service corporations are required to file with the auditor of state, annual reports exhibiting their gross earnings, and to pay a franchise tax of one per cent, of such gross earnings. Insurance companies of every class, building and loan companies, etc., are required to file annual reports with the superintendent of insurance, and also to pay an excise tax. Hence it is apparent that the burden of excise taxes is fairly distributed among the corporations for profit operating within the state.
   Burket, J.

The fee of one-tenth of one per cent, exacted from corporations in May of each year is an excise or franchise tax for general revenue. That such a tax may be constitutionally collected has been decided by this court in Telegraph Co. v. Mayer, 28 Ohio St., 521; Express Co. v. State, 55 Ohio St., 69; State ex rel. v. Ferris, 53 Ohio St., 314; and other cases, and is no longer an open question.

The state is a sovereignty and its powers are sovereign, except as limited and restricted by the constitution of the United States.

The grant of legislative power to the general assembly in section one of article two of the constitution is absolute, and is not limited in that section. The absolute and unlimited power of taxation is granted by that section to the general assembly, and the taxation may be upon franchises, privileges or property, as the general assembly may deem best; but when it comes to taxing property, there is a limitation placed upon that power by sections one, two and three of article twelve of the constitution, and by section four of article thirteen of the same instrument. By section one of article twelve, a limitation prohibits the levying of a poll tax for county or state purposes. By section two of the same article, all taxable property, real and personal, is required to be taxed by a uniform rule as its true value in money. By section three all property employed in banking is required to bear a burden of taxation, equal to that imposed on the property of individuals; and by section four of article thirteen, property of corporations is subject to taxation the same as the property of individuals. These are very important limitations upon the power of taxation of property granted by said section one of article two of the constitution, and are intended to secure uniformity and equality in taxation on property.

But upon the power to tax privileges and franchises there is no express limitation in the constitution, but certain limitations upon that power must be implied from other provisions of the constitution, so as to make the whole instrument harmonious and consistent throughout. The constitution was established to “promote our common welfare.” Preamble to the constitution. Government is instituted for the equal protection and benefit of the people. Section two of the bill of rights. Private property shall ever be held inviolate, but subservient to the public welfare. Section nineteen of the bill of rights. These provisions of the constitution are implied limitations upon the power of taxation of privileges and franchises, and limit such taxation to the reasonable value of the privilege or franchise conferred originally, or to its continued value from year to year. Ashley v. Ryan, 49 Ohio St., 504; State ex rel. v. Ferris, 53 Ohio St., 314, and Hagerty v. State, 55 Ohio St., 613, are examples of taxing the privilege or franchise conferred; while Telegraph Co. v. Mayer, 28 Ohio St., 521, and Express Co. v. State, 55 Ohio St., 69, are examples of taxing the continued value of the existing privilege or franchise from year to year.

These limitations prevent confiscation and oppression-under the guise of taxation, and the power of such taxation cannot extend beyond what is for the common or public welfare, and tbe equal protection and benefit of the people; but the ascertaining and fixing of such values rests largely in the general assembly, but finally in the courts.

A domestic corporation is given life, and continued ■existence by the state, and this life and existence with their accompanying powers constitute the franchise, and this franchise being valuable and given by the state, the state may impose a franchise tax thereon to the amount of the value thus conferred and con-, tinued, the same as in taxation by assessment, the public first bestows á special benefit upon the property, and then takes back by way of assessment a part or all it has thus conferred. Walsh v. Barron, 61 Ohio St., 15. A foreign corporation can do business in this state only upon such terms and conditions as the state may impose, and therefore a franchise tax may be imposed upon a foreign corporation for the privilege of doing business in this state. It therefore follows that a franchise tax may be imposed on both domestic and foreign corporations alike.

An excise tax may also be imposed on corporations to compensate the state for the additional burden sustained by the state and the people, by reason of property being held by artificial bodies, the persons com-, prising such bodies being exempt from liability to a great extent for the debts thereof. This ground of excise taxation was recognized in Adler v. Whitbeck, 44 Ohio St., 539, and was there applied to the liquor traffic, because that business was there shown to impose additional burdens upon the state. So the aggregation of capital by corporations imposes additional burdens, and requires regulations not applicable to individuals.

It is urged, and truly, that the capital paid in by the stockholders becomes invested in property,- and that taxes are paid thereon the same as individuals pay upon their property. Then it is urged secondly that this exaction of one-tenth of one per cent, on the subscribed or issued and outstanding capital stock, is an additional tax on the same property or capital, and that thereby double taxation results. But this second proposition is not true, because the exaction of one-tenth of one per cent, is not a property tax on property owned by the corporation, but is an excise tax the amount of which is fixed and measured by the amount of subscribed or issued and outstanding capital stock. To constitute double taxation, both taxes must be property taxes, and both on the same property. Here one tax is a property tax, and the other an excise or franchise tax, and therefore there is no double taxation.

The limitation in section four of article thirteen of the constitution, which prohibits double taxation of the property of corporations, applies only to taxation on property, and not to taxation of privileges or franchises. What is said in Cleveland Trust Co. v. Lander, 62 Ohio St., 266, as to that limitation, is solely as to property taxation. That section of the constitution plainly shows that it applies to property taxation only, and has no reference to excise, or franchise taxes. The section is as follows: “The property of corporations, now existing orhereafter created, shall forever be subject to taxation, the same as the property of individuals.”

The stock of a corporation is not its property, and is not owned by it, but by the several stockholders. It owes and not owns the stock. The stock is a liability of the corporation, and not an asset; and being a liability it cannot be taxed, because in property taxation the tax must be upon the true value in money, and a liability can have no such value. So that, this exaction of one-tenth of one per cent, is not a tax against the corporation on stock owned by it, but is a franchise tax the amount of which is fixed and graded by the amount of subscribed or issued and outstanding capital stock.

In Railway Co. v. State, 49 Ohio St., 189, it was held that an act requiring a fee of one dollar per mile of track to be paid by every corporation operating a railroad in this state, was unconstitutional, as being in conflict with sections two and five of article twelve of the constitution; and it is urged that as that fee or tax of one dollar per mile in addition to the general taxes paid on the railroad was unconstitutional, this fee or tax of one-tenth of one per cent, on the stock is also unconstitutional. But that does not follow. The track of the railroad was property, and was OAvned by the company, and the one dollar per mile was a tax on property, and was in addition to the general tax paid on the true value in money, and was more than on property of individuals, and was therefore in conflict, not only with said section two of article twelve of the constitution, but also in conflict with said section four of article thirteen of the same instrument. But in the case at bar the tax is not a property tax,, and the stock is not owned by the corporation, as already explained, and therefore the case of Railway Co. v. State, is not like the case at bar, and does not rule the same.

The tax of one-tenth of one per cent, on the amount of the subscribed or issued and outstanding stock, is not unreasonable, and does not appear to be above the continuing value of the franchise of corporations from year to year, and is therefore within the clear power of such taxation by the general assembly.

The act in question is not void for uncertainty als urged by counsel, but is in all respects a valid and constitutional statute.

Judgment affirmed.

Spear, Davis, Shauck and Price, JJ., concur.


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    The State of Ohio ex rel. Fensell v. Aldridge, Auditor, et al.

      Apportionment of valuation of railway property — Sec. 2774, Rev. Btat. — Sow property belonging to railroad division should be apportioned among counties — Taxation of rolling stock— Sow determined by county auditors — Minutes of a taxing board not conclusive — Real facts may be shown by parol— Taxation of property — Law of evidence.

    1. The words, “belongs to * * * any one of such divisions or branches,” in section 2774, Revised Statutes, has reference to cases in which a division or branch of a railroad is separately equipped; and in such cases its rolling stock, while owned by the company, is regarded as belonging to such division or branch for operating purposes, and the value thereof is required by said section to be apportioned for taxation, among the counties through, or into, which the track of said division or branch extends.
    2. If the rolling stock does not so belong to a division or branch, but is' used solely thereon, the value thereof is required by said section to be apportioned for taxation, the same as if such rolling stock so .belonged to said division or branch.
    3. The value of so much of the rolling stock as does not so belong to the main line or to a division or branch, and is not solely used thereon, is required by said section to be apportioned for taxation among all the counties, through, or into, which the road extends, in the same proportion that the length that such road in each county, bears to the entire length thereof in all said counties, including main line, divisions and branches.

      4. In apportioning the value of rolling stock, the board composed of the county auditors, should first ascertain the value of the rolling stock which belongs to, or is used solely on the main line, division or branches, and then ascertain the value of all the other rolling stock, and then apportion their valuations upon a mileage basis as required by said section 2774.
    5. The minutes of a taxing board are not conclusive, and the real facts may be shown by parol, unless otherwise provided by statute.
    (Decided June 24, 1902.)
    In Mandamus.
    The Cleveland and Pittsburg railroad has a “Main Line,” a “River Division,” and a “Tuscarawas Branch.” The railroad is operated by the Pennsylvania Company, and part of the rolling stock belongs to or is used solely upon said main line, part on said river division, part on said Tuscarawas branch, and the remainder belongs to and is used generally and indiscriminately upon the whole road including the division and branch.
    On May 10, 1901, the auditors of the different counties through, or into which said railroad and its division and. branch pass, met at the city of Cleveland in compliance with sections 2770 to 2776, Revised Statutes, to fix and apportion the taxable valuation of said railroad as required by said sections. The rolling stock was appraised by said board at seven thousand dollars per mile, and the amount for rolling stock was apportioned by the secretary of the board of auditors, 77 per cent, to the main line, 19 per cent, to river division, and 4 per cent, to Tuscarawas branch, and the amounts arising from these per cents were apportioned to the respective counties upon a mileage basis according to the number of miles of track in each county.

      The auditor of Tuscarawas county claimed that this percentage apportionment of the value of the rolling stock was in violation of the provisions of section 2774, Revised Statutes, and filed his petition in mandamus in this court, against the auditors of all the other counties composing said board of appraisement, praying that writs of mandamus might issue commanding said auditors and said board to again meet and distribute and apportion the valuation of said item of rolling stock in the proportion that the total length of the main track of said road in said county of Tuscarawas bears to the entire length thereof in all of said c.ounties.
    The auditor of Jefferson county by cross-petition prayed first that the apportionment be made according to law, and then prayed that the valuation of the rolling stock be distibuted in proportion that the total length of-the main track in Jefferson county bears to the entire length thereof in all of said counties.
    The auditor of Belmont county in a cross-petition in behalf of his county joined in the prayer for like relief. The auditor of Carroll county by cross-petition in behalf of his county also asked for a reffistribution and apportionment as provided in said section 2774.
    The auditors of the counties of Columbiana, G.uyahoga, Portage and Summit filed a joint answer in which they claimed the apportionment upon said percentage basis to be lawful and prayed judgment accordingly.
    It is claimed by those in favor of the percentage basis of distribution, that that method of distribution was ordered by the board at its meeting, and the minutes of the secretary bear out this claim. On the other hand it is claimed that only the valuation of the rolling stock was fixed by the board, and then the secretary was to make inquiry as to the legality of distributing by a percentage basis, and make such distribution if found to be legal, and that the secretary found such method to be legal and made the distribution accordingly. The master to whom this case was referred finds this latter contention to be true, and that the minutes of the secretary do not correctly state what actually occurred at the meeting.

      Mr. John M. Sheets, attorney general, Mr. J. F. Greene and Mr. V. H. Mowls, for relator.

      Mr. F. II. Kaiser and Mr. R. M. Wanainalcer, for defendants.
   Burket, J.

The statute which governs the apportionment of the value of the rolling stock of a railroad among the several counties for purposes of taxation is section 2774, Revised Statutes. That section is as follows:

“Section 2774. The value of such property, moneys and credits, of any railroad company, as found and determined by such board, shall be apportioned by said board among the several counties through which such road, or any part thereof, runs, so that to each county and to each city, village, township and district, or part thereof therein, shall be apportioned such part thereof as shall equalize the relative value of the real estate, structures, and stationary personal property of such company therein, in proportion to the whole value of the real estate, structures, and stationary personal property of such railroad company in this state; and so that the rolling stock, main track, roadbed, supplies, moneys and credits of such company shall be apportioned in the same proportion that the length of snch road in such county bears t@ the entire length thereof in all said counties or county, and to each city, village, and district, or any part thereof therein, provided that if the line of any railroad company is divided into separate divisions or branches, so much of the rolling stock of such company as belongs to or is used solely upon any one of such divisions or branches shall be apportioned in the same manner to the county or counties, and to each city, village and district, or any part thereof therein, through which such branch or division runs, and the board shall certify to the county auditor of each county, and to each city, incorporated village, township and district, or any part thereof therein interested, the amount apportioned to his county, and the board shall make and forward a like certificate together with all the reports of the various railroad officers, and other papers and evidence which formed the basis of their valuation, to the auditor of state, for the use of the state .board of equalization of railroad property. It shall be the duty of the county auditor, upon receiving the certificate aforesaid, to apportion the amount therein stated to the cities, villages, townships, districts, or parts thereof; but the auditor shall not put the same on the tax list until he shall have been advised of the action of said state authority, when the proper amounts shall be entered on the tax lists.”

It is conceded on all hands, and found by the master as a fact, that the railroad in question has a main line, a river division and a Tuscarawas branch, and that part of its rolling stock-is used solely upon the main line, part on the river division and part on the Tuscarawas branch, and the remainder of the rolling stock is used indiscriminately upon the whole road including the division and branch.

The above section of the statute requires the board of appraisers to apportion to the main line the value of the rolling stock which belongs to, or is used solely thereon, and to the river division the value of the rolling stock which belongs to, or is .used solely upon that division, and to the Tuscarawas branch the value of the rolling stock which belongs to, or is used solely on that branch, and then to ascertain the value of the remaining rolling stock, the whole valuation being seven thousand dollars per mile, and distribute and apportion the value of this remaining rolling-stock among the counties according to - the number of miles of track in each, whether such track be main line, division or branch. The value of the rolling-stock which belongs to, or is used solely on the main line is required to be apportioned among the counties through or into which the main line passes according to the number of miles of such track in each county, and the same rule applies to the division and branch.

A division or branch cannot separately own any part of the rolling stock, because all the rolling stock is owned by the company; but it often occurs that a branch or division is constructed, equipped and financed by itself, and separate books and accounts kept of the earnings, running expenses, equipage, interest, bonds, etc., and in such cases the rolling stock, while owned by the company, is regarded as belonging- to such branch or division for operating purposes, and in such cases its value is required by said section 2774, to be apportioned to the counties through, or into, which the track of such branch or division passes, according to the number of miles of track in each county.

If there is no such separate construction, equipage or accounts, but still certain parts of the rolling- stock are used solely upon such division or branch, the same result would follow as if such rolling stock, belonged in the above sense, to such division or branch. But if none of the rolling stock so belongs to any division or branch, and is not used solely thereon, then the whole value of the rolling stock upon the whole road is, by said section, required to be apportioned among all the counties according to the number of miles of track in each, whether main line, division or branch.

While it does not positively appear from the facts found by the master, that any injustice was done in the apportionment made by the board upon such percentage basis, it clearly appears that the apportionment was made upon a wrong and unlawful basis, and that in all probability injustice was done, as it is not likely that a correct result would arise from a wrong basis or method.

It is urged that the minutes of the meeting of the auditors is a record conclusive in its nature, and that proof cannot be received to show the real facts, as such proof would be contradicting the record. This claim is not tenable. In matters of taxation the real facts may be shown even though such facts add to or contradict the record of a taxing board. Lewis v. State ex rel., 59 Ohio St., 37; Hagerty v. Huddleston et al., 60 Ohio St., 149.

A writ of mandamus will therefore be awarded commanding the auditors of the several counties through, or into which said railroad passes, to reassemble and as a board apportion the valuation of seven thousand dollars per mile among said counties by the method and upon the basis, as required by said Sec. 2774 as above construed.

Writ of mandamus awarded.

Spear, Davis, Shauck and Price, JJ., concur.


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    Van Etten et al. v. Kelly.

      Oil lease requiring certain wells — To be completed within stated time — Otherwise to become void unless second party make monthly payment — Does not constitute obligation to pay rental — Action for recovery of rentals will not lie, when.

    An oil lease which required certain wells to he completed within stated times, contained the following: “In case no' well is completed within thirty days from this date, then this grant shall become null and void, unless second party shall pay to first party thirty dollars each and every month in advaneé while such completion is delayed.” Held, that this did not constitute a promise or obligation to pay rental; and held further, that the lessee had the option to complete wells, or pay rentals, to keep the lease alive; and that upon breach of the agreement to complete wells, no action would lie for the recovery of rentals.
    (Decided June 24, 1902.)
    Error to the Circuit Court of Wood county.
    The action in the court of common pleas was for the recovery of rental claimed to be due under the terms of an oil lease made by Luceba A. Kelly to one Scott Blair. The following is a copy of the lease except signatures;
    “In consideration of the sum of one hundred dollars, the receipt of which is hereby acknowledged, Luceba A. Kelly, first party, hereby grants unto S. Blair, second party, his successors and assigns, all the oil and gas in and under the following described premises, together with the right to enter thereon at all times for the purpose of drilling and operating for oil, gas or water; to erect and maintain all buildings and structures and lay all pipes necessary for the production and transportation of oil, gas or water taken from said premises. Excepting and reserving, however, to first party the one-sixth part of all oil produced from said premises, to be delivered in the pipe line with which second party may connect its wells, namely:
    All that certain lot of lands situated in the township of Freedom, county of Wood, in the state of Ohio, bounded and described as follows: to-wit:
    The south half (%) of the northwest quarter of section No. twenty (20), town five (5), range twelve (12) east, containing eighty acres, more or less.
    To have and to hold the above premises on the following conditions:
    If gas only is found second .party agrees to pay three hundred dollars each year for the product of each well, while the same is being used off the premises, and the first party to have gas free of cost to heat three stoves in dwelling house during the same time.
    Whenever first party shall request it, second party shall bury all oil and gas lines, and pay all damages done to growing crops by reason of removing and burying said pipe lines, or in drilling said wells.
    No well shall be drilled nearer than 300 feet to the house or barn on said premises, and no well shall occupy more than one acre.
    In case no well is completed within thirty days from this date, then this grant shall become null and void, unless second party shall pay to said first party thirty dollars each and every month in advance while such completion is delayed. Payable at first party’s residence.
    The second party shall have the right to use sufficient gas and water to run all necessary machinery for operating said lease, and also the right to remove all its property at any time.

      The east forty acres of said land shall be drilled first. Second party agrees to complete a well every sixty days from date hereof on said east forty acres until six wells are completed including the first well and all lines must be protected. Second party further agrees to complete a well every ninety days on the west forty after the completion of the sixth or last well on the east forty acres. It is understood that the monthly rental shall apply to any well or wells not completed as herein specified.
    It is understood between the parties to this agreement that all conditions between the parties hereunto shall extend to their heirs, executors and assigns. This lease to be void after fifteen years from date hereof.
    In witness whereof, the parties have hereunto set their hands and seals this 15th day of September, A. D. 1896.”
    Neither the lease nor any transfer of any interest therein was ever recorded.
    After stating in proper form the making of said lease and its terms and conditions, the petition of the said plaintiff below, Luceba A. Kelly, proceeds as follows:
    “That said Blair on said 15th day of September, 1896, took said lease in his own name, but in fact for and on behalf of defendants, excepting and reserving one-eighth interest in and to said lease which was owned by said Blair and afterwards the defendant, Henry Bowlus, purchased the said interest therein belonging to said Blair.
    “That said lease is held and owned by said defendants under and subject to all the terms and conditions in said lease therein mentioned and read, and that said defendants and each and every one of them in accepting said lease, and operating same, as hereinafter alleged, have become liable to the payment of any moneys there may be due as rental of said lands. That according to the terms of said lease, the said defendants did drill the first well upon the east forty acres of said premises and completed the same within the time provided for in said lease. And sixty days thereafter they, the said defendants, did drill and complete another well on said east forty (40) on said premises. That according to the terms of said lease in the month of March and on the 15th day of said month, 1897, there should have been another and third well completed on the said east forty acres on the said lands.
    “To complete said third well the defendants each and every one of them have wholly failed, refused and neglected to do, and thereupon and thereby they became and are liable to the payment of said sum of thirty ($30) dollars per month as long as the completion of said third well is delayed.
    “And the said plaintiff further says that for the last five months past said defendants have Avholly failed and refused to operate the wells they have so drilled and have failed to operate the same so that this plaintiff has received no benefit therefrom.
    “Yet the said defendants have failed, refused and neglected to either cancel said lease or operate said, wells or pay said rental.
    “Wherefore said plaintiff prays that she may have judgment against said defendants for the sum of three hundred and ninety ($390) dollars together with interest thereon, as follows
    Then follow installments of rental, amounting to $390 with interest.

      The defendants below in their answer denied substantially all the averments of the petition, and plead that oil in paying quantities could not be produced on said premises, and that after ascertaining that t£> be so, they had offered to surrender and cancel the lease, and. also averred that by a proper and fair construction of said lease the defendants below, plaintiffs in error here, were not required to pay any rental whatever to the plaintiff, by reason of the failure to drill said wells, or for any other cause. The reply denied the averments of the answer.
    Upon the trial the evidence tended to show that Scott Blair took said lease in behalf of himself and the other defendants, except Henry Bowlus, who came in later; that they so understood the matter, accepted the lease, and drilled the two wells thereunder. That Henry Bowlus purchased the interest of Scott Blair after default had been made in completing the third well.
    The plaintiff below recovered a verdict against all •the defendants for $390. A motion for a new trial was made and overruled, and judgment entered on the verdict.
    The circuit court affirmed the judgment, and thereupon the plaintiffs in error came here, seeking to reverse the judgments below.

      Mr. John B. Hoyman; Messrs. Baldioin & Harring.ton and Mr. James 0. Troup, for plaintiffs in error.

      Mr. Peter JUmslie, for defendant in error.
   Burket, J.

The only question worthy of report is, as to the true construction of the oil lease in regard to the payment of rentals. All the terms and conditions of the lease in that regard are the following : “In case no well is completed within thirty days from this date, then this grant shall become null and void, unless second party shall pay to said first party thirty dollars each and every month in advance while 'Such completion is delayed. * * * It is understood that the monthly rental shall apply to any well or wells not completed as herein specified.”

It was in said lease specified that a well should be completed every sixty days from date of lease on east forty acres until six wells should be completed thereon, and that a well should be completed every ninety days on the west forty, after the completion of the sixth well on the east forty.

A well was completed on the east forty within thirty days after the date of the.lease, and as to that well there was full performance, and the lease was thereby saved from forfeiture, as to the first well. The same is true of the second well. But no third or other well was ever completed, and thereby the agreement in the lease as to completing such other wells, was broken, and now the question arises as to the remedy for such breach of contract.

The plaintiff below claims that in the words, “unless second party shall pay to said first party thirty dollars each and every month in advance while such completion is delayed,” there lies a promise to pay thirty dollars per month for such delay. This is not tenable. The full force and effect of this “unless” clause, taken by itself, is, to give the lessee the option by making such payment to continue the lease in force to the end of the term without completing the first well, or upon failure to make such payment, allow the lease to become null and void at the end of thirty days after the date of the lease. Brown v. Fowler, 65 Ohio St., 507.

There is no promise or obligation in this lease to pay rental to the lessor for failing to complete the first well, bnt only a privilege to pay such rental at the option of the lessee to prevent the lease from becoming null and void.

As the only monthly rental provided for in the lease is that found in this “unless” clause, and as that rental is to prevent the lease from becoming null and void, it seems fairly clear that the subsequent understanding that the monthly rental should apply to any well or wells not completed as therein specified, is for the same purpose, that is, to prevent the lease from becoming null and void, and that upon failure to pay such monthly rental in advance while the completion of any well was so delayed, the lease by its terms became null and void, and the lessor had the option to so treat the lease, and recover possession, or recover for use and occupation, or recover damages for breach of contract to drill the wells specified in' the lease, but she could not recover rentals for breach of contract to complete wells, because there is no agreement to pay rentals for such breach, and there being no such agreement, there can be no breach thereof.

In Woodland Oil Co. v. Crawford, 55 Ohio St., 161, the lessee agreed to drill certain wells and upon failure, to pay certain rentals, It was held that the lessor might elect to enforce the contract to drill, or waive that, and enforce the promise to pay rental.. There the option was with the lessor. Here, as there-is no promise to pay rental, the option is with the lessee, either to drill or pay rental to keep his lease alive, and failing in both, the lease becomes null and void, with an option however in the lessor to treat it as void, or to sue for damages for breach of the contract to complete the wells as specified in the lease.

As the action below was for the recovery of rentals under the lease, and as the lease contains no promise to pay rentals, the plaintiff under a correct construction of the lease has no cause of action for rentals, and the judgments of the lower courts must therefore be reversed and petition dismissed, but without prejudice to the bringing of such other action for the breach of said contract to complete- wells, as máy be authorized by law.

Judgments reversed and judgment for plaintiff in error.

Spear, Davis, Shaucic and Price, JJ., concur.