author: Dickman, J.

text:
    Shotweel v. Moore.
    Taxation— Conversion of taxable property into “greenback” — Constitutional law —See. 2, art. 12, Const. — Sec. 2737 Reo. Stats.

    1. Subdivision 16 of section 2737 of the Revised Statutes of Ohio, which provides that the statement of each person required to list property, shall get forth “ the monthly average amount or value for the time he held or controlled the same, within the preceding year, of all moneys, credits, or other effects, within that time invested in, or converted into bonds or other securities of the United States,” is not in conflict with section 3701 of the Revised Statutes of the United States,which provides that, “ all stocks, bonds, treasury notes and other obligations of the United States, shall be exempt from taxation by, or under state, municipal or local authority.”
    2. Thfe method provided in subdivision 16 of section 2737, for estimating the taxable value of property converted during the year into non-taxable securities, is not in conflict with section 2,of article XII, of the constitution of this state, which requires that laws shall be passed, taxing all property by a uniform rule, according to its time value in money.
    (Decided March 27, 1888.)
    Error to the Circuit Court of Harrison County.
    The original action was commenced in the court of common pleas of Harrison county, by Albert J. Harrison, as treasurer of Harrison county, against Stewart B. Shotwell, the plaintiff in error. The original petition reads as follows:
    “The plaintiff, Albert J. Harrison, says he is the duly elected, commissioned, qualified, and acting treasurer of Harrison county, Ohio. Plaintiff says that personal taxes to the amount of twenty-three hundred and twenty-four dollars and eighty-nine cents stand charged against the defendant, S. B. Shotwell, on the duplicate of taxes of said county, placed in the hands of this plaintiff for collection by the auditor of said county, which said taxes are due and unpaid, and said defendant is indebted to said Albert J. Harrison, as treasurer of said county, in the sum of $2,324,89, the sum charged against defendant as tax as aforesaid.

      “ Wherefore plaintiff says there is due to him, as such treasurer, from said defendant, $2,324.89, with interest from this date, February 19, 1886. And he therefore asks judgment against said defendant for said sum of $2,324.89, with interest from February 19th, 1886, and costs of this suit.”
    The defendant answered as follows :
    “ The defendant, S. B. Shotwell, says that the taxes claimed, to-wit, $2,324.89, were put on and charged against him by the auditor of said county on the additional duplicate on the several sums placed on said duplicate lately, to-wit, February, 1886, as follows:
    “For the year ’81, $30,900.
    “ For the year ’82, 26,900.
    “ For the year ’83, 29,550.
    “ For the year ’84, 18,560.
    “ For the year ’85, 7,420.
    “ And he says that said sums were not legally put upon said duplicate, and the taxes thereon were not duly levied as alleged. He says he made no return of said several sums for taxation, in said several years, because he says that he held said sums, (or nearly said several sums, but not quite so much,) when he was required to list and take account of said property for assessment, to-wit, on the day preceding the second Monday of April in said respective years, in United States obligations, to-wit: United States notes, commonly called greenbacks, and he claims that said obligations are not liable to state taxation by law, either directly or indirectly, and that the said county auditor had no legal authority to place said several amounts on the duplicate, and assess said taxes thereon; and the said treasurer has no legal authority to collect the same. He, therefore, denies that he is indebted to the plaintiff in the sum of $2,324.89, or any other sum for unpaid taxes as aforesaid. Wherefore, he prays judgment, and that plaintiff be enjoined from collecting or attempting to collect the same.”
    The plaintiff filed a reply.
    The parties having waived a jury, the cause was tried to the court, and the parties, with a view of excepting to the decision of the court upon the questions of law involved in the trial, and having requested the court to state in writing the conclusions of fact found, separately from the conclusions of law, and the testimony having been heard, the court found its conclusions of fact, which are sufficiently stated in the opinion herein. And the court of common pleas being of opinion that upon the facts so found, the law of the case was with the defendant, it was thereupon considered that the defendant recover of the plaintiff his costs expended, taxed at-dollars.
    The circuit court, on petition in error filed by Samuel A. Moore, as the then treasurer of Harrison county, reversed the judgment of the court of common pleas, and adjudged that Samuel A. Moore, as treasurer of Harrison county, recover of Stewart B. Shotwell the sum of twenty-four hundred and twenty-two dollars and seven cents debt.
    To reverse the judgment of the circuit court, this proceeding is instituted.

      Harrison, Olds & Marsh and J. M. Estep, for plaintiff in error.
    1. It is well settled that securities of the United States, including treasury notes, popularly known as “ greenbacks, ” are not subject to taxation under the laws of a state, to any extent, directly ; and that they cannot be taxed, to any extent, indirectly, by the taxing the means converted into or invested in such securities. A state law for that purpose is unconstutional, whether it imposes the tax on the securities eo nomine, or includes them in the aggregate of the tax payer’s property to be valued, like the rest, at its worth.
    The taxing power, so far as it is reserved to the states, and used within constitutional limits, cannot be controlled or restrained by the judiciary, either state or national, the prudence of its exercises not being a judicial question. But a' state tax on the loans of the federal government is a restriction upon the constitutional power of the United States to borrow money, and if the states had such a right, being in its nature unlimited, it might be so used as to defeat the federal power altogether. The states, therefore, cannot retard, or impede, or burden, to any extent, or in any manner control, the exercise of the constitutional power of the United States to borrow money.
    It is evident that the right of exemption from taxation on so much property as may have been lent to the government of the United States, cannot, as the general assembly of the state of Ohio seem to assume, be made to depend on the mode of valuation. The immunity from taxation arises from the fact of having lent money to the government and taken evidences of debt in lieu thereof. Hence, the state cannot tax the security in any way. It cannot tax the money invested in the security. For to tax the means put into the security would be, in effect, to tax the security. M’Culloch v Maryland 4 Wheat. 316; Bank of Commerce v. New York, 2 Black, 620; Bank Tax Case, 2 Wall. 200; The Banks v The Mayor, 7 Wall, 16; Weston v Charleston, 2 Pet. 449; New York Bank v. Supervisors, 7 Wall. 26.
    The Revised Statutes of the United States, approved June 22, 1874, contain the latest expression of congressional will on this subject, as follows : “Sec. 3701. All stocks, bonds, treasury notes and other obligations of the United States, shall be exempt from taxation by, or under state or municipal or local authority.” Rev. Stats. U. S. 736.
    2. It follows that subdivision 16 of section 2737 of the Revised Statutes of Ohio is in direct conflict with the meaning, intention, spirit and effect of section 3701 of the Revised Statutes of the United States, and is therefore inoperative and of no effect.
    Precisely the same provision was enacted by the general assembly of the state of Indiana, but the supreme court of that state in the case of Ogden v. Walker, 59 Ind. 460, held the provision to be inoperative and void.
    3. Counsel for the defendant in error seem to claim that United States securities are not “ exempt from taxation by or under state or municipal or local authority,” if the motive of the person acquiring them by purchase is to lessen the amount of property he is required to list for such taxation. This claim is wholly untenable, Stilwell v. Corwin, 55 Ind. 433;
      People v. Ryan, 88 N. Y. 142; Thayer v. Boston, 124 Mass. 132; Savary v. Georgetown, 12 Met. 178.
    It is selfevident that such securities need not be owned for any specific time to entitle the holder of them to all the benefits and advantages of their ownership, including the benefit or advantage of their exemption from taxation according to the supreme law of the land. Anyone may acquire title to them when he pleases, and part with them at his pleasure. The fact that the Ohio statute limits the tax upon the moneys, credits or other effects so invested or converted, to the monthly average amount or value thereof for the time they were held or controlled within the preceding years does not remove the objection to its validity, for the reason that taxation, in that mode of investments in non-taxable government securities deprives the person so investing his means in such securities of the full benefit and advantage of the act of congress exempting them wholly from taxation either directly or indirectly.
    The original action brought against the plaintiff in error in the court below was an action at law for the recovery of a personal judgment for money only. The question in tho case was purely of legal right and legal liability. Hence Mitchell v. Leavonworth County Commissioners, 91 U. S. 206, and other cases cited by adverse counsel have no application to the case in hand.
    4. The methods provided in subdivision 16 of section 2737, for estimating the taxable valuation to be placed on property converted during the year into non-taxable securities, are in conflict with section 2 of article 12 of the constitution of the state, which requires that laws shall be passed taxing all property “ by a uniform rule ” in this, that the rule for tho valuation of property converted into non-taxable securities is different from that provided for the valuation for purposes of taxation of other kinds of property. Western Union Tel. Co. v. Mayer, 28 Ohio St. 522; Baker v. Cincinnati, 11 Ohio St. 534, 541; Exchange Bank v. Hines, 3 Ohio St. 1; State v. Township of Readington, 36 N. J. Law, 70; Railroad Tax Case, 8 Sawyer, 238; s. c. 13 Fed. Rep. 722.

      The assessment of property taxed is the ascertainment of its value. The value, on a given day, of the property of an individual, and its assessment for taxation on such value, is a different mode of assessment based upon the monthly average value or amount thereof during the year preceding a given day.
    The question whether the provision in the tax law providing for the returns- by merchants and manufacturers of the monthly average value of their stock held during the year is authorized by section 2 of article 12 of the constitution has not been presented to this court. It is true there is a dictum of Judge Bartley in the case of Exchange Bank v. Hines, 3 Ohio St. 1, to the effect that the provision is not in conflict with the constitution. But the question Aras not involved in that case. Moreover the tax upon merchants and manufacturers is in the nature of a charge upon a business which may be krwfully levied. Cin. Gas L. & C. Co. v. State, 18 Ohio St. 237; Western Union Tel. Co. v. Mayer, 28 Ohio St. 522.
    5. Even if it Avere held that each of the foregoing positions is untenable, the judgment of the circuit court is erroneous because it includes the amount of the tax and penalty upon the money Avhich the plaintiff in error had on deposit in bank during the year 1881.
    Under the system for the assessment and taxation of property in this state, and for levying taxes thereon according to its true value in money, the statement must show the property in the possession or under the control of the person making it on the day preceding the second Monday of April of that year.
    The tax is levied upon the personal property and effects so returned for taxation. Upon the making of the return, the county auditor is required to levy the tax upon the property returned for the current year. The levy is a yearly tax. And one yearly levy of a tax exhausts the poAver for the year. Cooley Tax. 256. A tax is prospective, not retrospective. A tax can be laAvfully levied but once in the same year upon the same property. Otis v. Boston, 12 Cush. 48; Cooley Tax. 164.

      The plaintiff in error had returned for taxation the personal property and effects owned by him on the day preceding the second Monday of April, 1880, and the same was accordingly taxed for the year beginning on that day in that year, and ending on the day preceding the second Monday of April, 1881. It could not, therefore, be subjected to taxation again during that year.

      I). A. Hollingsworth and J. M. Ganen, for defendant in error.
    All agree that “greenbacks” are non-taxable for state'or municipal purposes, either directly or indirectly. The United States statutes not only prohibit such taxation, but the credit and safety of the general government require that all its securities should be protected from local tax regulations. Bank of Commerce v. New York City, 2 Black, 620; The Banks v. The Mayor, 7 Wall. 16. Therefore the cases cited by counsel for plaintiff in error are not controverted by us either in theory or on principle. But we insist that they have no application in this case. The findings of fact show that the temporary conversion of the deposits of plaintiff in error into “ greenbacks” was expressly for the purpose of evading taxation. They were not so converted for any legitimate use. The “greenbacks” continued in the bank, and might properly be said, in the language of section 2737 of the Revised Statutes of Ohio, to be “moneys on deposit subject to order.”
    Chief-Justice Waite, in Mitchell v. Leavenworth County Commissioners, 91 U. S. 206, characterizes a similar transaction as a “ scheme devised to escape his proportionate share of the burdens of taxation,” and he judicially rebukes it in unmistakable language.
    It was ably urged in argument, in that case, that the motive of Mitchell in converting his deposits into “ greenbacks ” was immaterial, and that the tax officers of the state of Kansas could not look beyond the nature and character of the property on the one day as of which the personal property of the state was required to be listed. But the chief justice was unwilling, even by silence, on a point not strictly before the court, to seem to sanction such view of the law, and he therefore characterized the transaction as a questionable “ scheme,” and condemned it as such. So anxious was he not to have the case understood as an authority limited in scope to purely equity causes, that he added the further remark that his remedy, “ifhe has any,” is in a court of law.
    The trial court found that the monthly average value of the moneys of the plaintiff in error was exactly equal to the amount drawn out of bank and converted into “ greenbacks,” and therefore it is a matter of no moment, in the consideration of this case, to determine whether the “ greenbacks ” which the plaintiff in error had on special deposit, were in fact taxaable or not.
    Bnt it is urged that the methods provided in subdivision 16 of section 2737 for estimating the taxable valuation to be placed on property converted during the year into non-taxable securities, is in conflict with section 2 of article 12 of the constitution of the state, in this, that the rule for the valuation of property converted into such securities is different from that provided for other species of property. The above section is a limitation on the legislative power of the general assembly conferred by section 1, article 2, and must be strictly construed, or, rather, it must not be extended by implication beyond its fair and legitimate meaning.
    Absolute uniformity in the method of estimating the value of different classes of property for taxation is impossible. The mode and agencies employed in listing and valuing the same necessarily differ according to the nature and character of the property. Nor can the burdens of taxation be made, in practice, to rest with exact equality on all property. The most that can be done is to approximate as nearly as possible to that equality of burden which is contemplated as well as positively enjoined in the organic law of the state. A fair and reasonable construction, therefore, of the above section of the constitution, would seem to require the general assembly to pass such laws, in regard to taxation, as will not discriminate in principle or in the rate to be imposed between different classes of property, leaving to its discretion the manner of ascertaining the value, and tbe time as of which taxes shall be levied, on any particular class. Accordingly laws have been passed providing separate methods of ascertaining the value for taxation of different classes of personal property. The merchant or manufacturer returns the monthly average value of his stock held during the year, but persons engaged in other vocations are required to return the amount and value held on a particular day. Exchange Bank v. Hines, 3 Ohio St. 1; Wagoner v. Loomis, 37 Ohio St. 571; Pelton v. National Bank, 101 U. S. 143; Cummings v. National Bank, 101 U. S. 153; National Bank v. Kimball, 103 U. S. 732.
    This provision of the statute simply provides a method for correctly estimating the value of property owned during a part of the year and converted into non-taxable securities, so that the owner may be assessed on such property proportionately for the time he may have held the same. By no process of reasoning can it be said that this is taxing the securities so held on the day property is required to be returned for taxation; it is simply taxing the property of the citizen for the time he holds the same and receives for it the protection of the state.
   Dickman, J.

It is not claimed by the defendant in error that United States notes, commonly called greenbacks, are directly or indirectly subject to taxation, by or under state or municipal authority. They are obligations of the United States, and that their value may not be impaired, and that they may promote the object for which they are issued, they should be beyond the taxing power of the states. The authority to. borrow money on the credit of the United States is among the enumerated powers expressly vested by the constitution in the national government, and, as within the sphere of those powers, that government has been made supreme, the states cannot, by taxing its notes or other obligations, impair its ability to raise money for necessary governmental • purposes. Bank v. Supervisors, 7 Wall. 26; The Banks v. Mayor, 7 Wall. 16. The constitutional grant to borrow money negatives, in itself, the riakt of the states to control or restrain, by any method, the exercise of the granted power. Yet, +o preserve the credit and value of the national securities and obligations, congress has enacted, by section 3701 of the Revised Statutes of the United States that, all stocks, bonds, treasury notes, and other obligations of the United States, shall be exempt from taxation by or under state or municipal or local authority.”

The question that engages our attention at the' outset is, whether subdivision 16, of section 2737, of the Revised Statutes of Ohio, is, in its operation and effect, in conflict with the meaning and intention of section 3701 of the Revised Statutes of the United States. By the tax-laws of Ohio, each person required to list property must annually make out and deliver to the assessor, a statement, of all the personal property, moneys, credits, investments in bonds, stocks, joint stock companies, annuities, or otherwise, in his possession, or under his control, on the day preceding the second Monday of April of that year, which he is required to list for taxation as owner, holder or otherwise. As provided by subdivision 16, of section 2737, the person listing must truly and distinctly, set forth in such statement, “ the monthly average amount or value, for the time he held or controlled the same, within the preceding year, of all moneys, credits, or other effects, within that time invested in or converted into bonds or other securities of the United States or of this state, not taxed, to the extent he may hold or control such bonds or securities on said day preceding the second Monday of April.”

As conclusions of fact found by the court of common pleas, the plaintiff' in error, on the Saturdays preceding the second Monday of April, from the year 1881 to the year 1885, inclusive, had moneys in varying amounts, on deposit in bank at the town of Cadiz, in Harrison county, to his credit as a general depositor. In each of those years, and on the Saturdays above named, he checked out the balance then standing to his credit, which, at his request, was paid to him in United States securities, commonly denominated greenbacks.” These securities he inclosed, on each occasion, in a package with his name thereon, and the officer of the bank placed it in the bank’s safe for him. At n.o time did he carry the securities out of the bank building. In each year, and in the early part of the next week after converting his balances into United States securities, he returned to the bank, opened his package, delivered the contents to an officer of the bank, and the same were placed to his credit as a general depositor. In drawing out the balance due him, it was his design, in each instance, to obtain non-taxable securities and thus evade taxation on, such balance. During the interim between the withdrawal of his balance and his subsequent deposit as a general depositor, he was the absolute owner of all moneys so withdrawn by him; and in no year, did he list any portion of such moneys for taxation; nor did he include in his tax return, the monthly average amount or value, for the time he held or controlled the same within the preceding year, of any moneys, credits, or other effects, within that time invested in or converted into United States securities. But the monthly average amount of moneys, so invested by the plaintiff in error in such securities, within the years respectively preceding the drawing out of such moneys, was the amount so drawn out at the end of the year. This monthly average amount of moneys held and controlled during each year preceding the time of their conversion into United States notes, was placed by the auditor upon the duplicate, which was delivered to the treasurer for collection; and it is contended, that the government securities were thereby indirectly subjected to state taxation, in violation of the act of congress.

It is manifest from an examination of the provisions of subdivision 16 of section 2737 of the Revised Statutes, that it was not the legislative intent, nor does the statute operate, to subject to taxation the treasury notes, or other obligations of the United States. Personal property converted into those securities may be taxable, but the securities are thereafter exempt from taxation. The statute recognizes and enforces the equitable principle that personal property held during a part of the year and then converted into non-taxable securities, should be taxed in proportion to the time it is so held before being thus converted. The owner is required to list for taxation the monthly average amount or value of moneys, credits, or other effects,'during the time he held or controlled the same within the preceding year. A statutory guide for ascertaining such monthly average is afforded in the mode prescribed by section 2740 of the Revised Stotutes, for estimating the average value of the stock in trade which a merchant shall have had, from time to time, in his possession, during the year next previous to the time of making his statement to the assessor. That section provides that the average shall be made up by taking the amount in value on hand, as nearly as may be, in each month of the next preceding year in which the person making such statement shall have been engaged in business, adding together such amounts, and dividing the aggregate amount thereof by the number of months that the person making the statement may have been engaged in business during the preceding year. The monthly average amount or value of moneys, credits, or other effects invested in non-taxable securities being once determined, that amount, upon a reasonable interpretation of the statute, should be taxed for that portion of the year, during which the person listing held or controlled the property in its original shape. If, for example, in the month of October, six months prior to the day as of which property is to be listed for taxation, a citizen of the state should invest a sum of money in United States notes, as it would contravene the federal statute to tax the securities into which the money had been merged, so, to exempt the money from taxation for the six months it had received the protection of the state, wTould be unequal and unjust. Nor can the taxing of money as such up to the time it assumes the form of government notes, or other obligations of the United States, be properly construed as virtually imposing a tax upon those non-taxable securities. The burden of taxation is thrown off, as soon as the taxable personal property is converted into United States securities.

The principle of taxation, for a proportionate period of the year, is embodied in the statutory mode of taxing unincorporated banks and bankers. Persons commencing the business of banking after the day preceding the second Monday of' April — the average value of whose personal property intended to be employed in such business shall not have been previously entered on the assessment list for taxation — are required to pay, into the county treasury, a sum which shall bear the same proportion to the levy for all purposes, on the average value so employed, as the time from the day on which they engaged in such business to the day preceding the second Monday in April next succeeding, shall bear to one year.

While the state statute cannot operate to subject to taxation government obligations known as “ greenbacks,” it could not be effective, in any degree, to bring them into disfavor, or to discourage investment in that class of federal securities. The statute may .aid in preventing persons using United States notes, as a means of fraudulently evading their duty to the state as tax-payers; but, the effect of the statute is to hold out an inducement, or make it an object to permanently convert idle and unproductive taxable property into government obligations, at the beginning instead of the end of the year — to increase the duration of investment — and thus stimulate the demand for such non-taxable securities.

It is urged, however, in argument of counsel, that the method provided in sub-division 16, of section 2737, of the Revised Statutes, for estimating the taxable value of the property therein designated, is in conflict with section 2, of Article XII of the constitution of the state, which requires the passage of laws taxing all property “by a uniform rule according to its true value in money,” in this, that the rule for the valuation of property converted into non-taxable securities, by estimating its monthly average amount or value, is different from that provided for the valuation of other kinds of property, which are assessed according to their value on a specified day. The question raised carries with it the obvious suggestion that property must be returned for taxation at its true value in money at a time when it is a legitimate subject for state taxation, and not when it has ceased to be such, through the act of the owner himself, in seeking an investment in non-taxable securities.

It is true that Article XII is not a grant of power, but a regulation of power already granted — not a delegation of authority to raise revenue, but a limitation of that power, as conferred by section 1 of article II of the constitution. Baker v. Cincinnati, 11 Ohio St. 534; West. Union Telegraph Co. v. Mayer, 28 Ohio St. 521. But, while the constitution prescribes that all property shall be taxed by a uniform rule, with a view to apportioning the burdens of government, so that each person shall contribute so much as is his reasonable proportion, and no more, it does not prescribe the mode of ascertaining-the taxable valuation of property, or the time as of which the value is to be determined. The method of ascertaining the true value of property in money, and the time as of which the same shall be listed for taxation, have been left to the wisdom of the legislature. “ Whenever it is made a requirement of the state constitution that taxation shall be upon property according to value, such a requirement implies an assessment of valuation by public officers, at such regular periods as shall be provided by law.” Cooley, Const. Lim. 496. And where the constitution contains no provisions upon this subject, “the necessity for valuation,” says the same author, “ is nevertheless implied, though the mode of making it, and the periods at which it shall be made, are left to the legislative discretion.” Ib. See also, Exchange Bank v. Hines, 3 Ohio St. 1, 22.

In the exercise of that discretion, the general assembly, for the purposes of taxation, has provided for estimating the value of certain species of property by different modes and agencies; for ascertaining the value as at different times; and for listing property as of different days. Thus, the person making a tax-return, may exhibit to the assessor certain enumerated articles, and allow him to fix the value thereof, while he must verify by his oath the value of all other items included in his return. The merchant is required to set forth in his return the monthly average value of personal property appertaining to his business, and which he has held during the previous year; the manufacturer, the monthly average value of all articles had on hand during the year, for the purpose of being used in manufacturing; and unincorporated banks and bankers, the monthly average amount of certain specified items owned or standing on their books during the preceding year; while numerous other classes of property are assessed according to their value on a particular day. And while personal property generally must be listed for taxation as of the day preceding the second Monday in April, shares in incorporated banks are listed, as of the Wednesday next preceding the second Monday of May in each year. These and other diversities in valuation, grow out of difficulties necessarily incident to the ascertainment of the true value of jn’operty in money. There are so many influences, tangible and intangible, which cause values to fluctuate from time to time, that absolute equality and uniformity of valuation are unattainable, and an approximation thereto is all that is practicable. But, because of such unavoidable inequalities in valuations for taxation, we are not to conclude that there is any material variation from the principle of taxing all property by a uniform rule, according to its true value in money. Wagoner v. Loomis, 37 Ohio St. 571; National Bank v. Kimball, 103 U. S. 732. Taxation of one class of personal property, based upon an estimate of its monthly average value during the next preceding year, while the value of a different class, on a specified day, is adopted, is not a departure from the rule of uniformity. The application of the principle of average valuation to the business of merchants and manufacturers, has long received the legislative sanction of this state, without, in our judgment, infringing the constitution; and we discover no valid reason why the same principle may not' be applied to the monthly average amount of moneys invested in United States securities. Instead of being at variance with a uniform rule or rate of taxation, it may properly be regarded as an authorized legislative mode of preventing an evasion of the law, and securing a fair basis for an equal and just apportionment to the property owner, of the necessary burdens of taxation. The residue of a merchant’s stock in trade, held at the time when by law he is required to make his tax return, would prove a very deceptive criterion of the taxable personal property held from month to month during the preceding year. It has been argued,” says Bartley, C. J., in Exchange Bank v. Hines, supra,that stock in trade is subject to a different rule of taxation from that which is imposed on other property. This is a mistake. The difference consists not in the rule or burden of taxation; but simply in the mode of ascertaining the valuation. The principle of valuing by an average has been introduced because stock in trade is constantly changing the article of its investment, and varying in the quantity on hand, from month to month.”

It is clear that it was the design of the plaintiff in error, in annually drawing his balance from the bank, and converting it into United States notes, to avoid the payment of his just proportion of taxes; and that the transaction was, in effect, a fraud upon the revenue. And it is contended that, where the investment in non-taxablc securities is colorable only — not designed to be permanent, but made to evade taxation, and with the predetermined purpose of reconverting the securities at the earliest day after the assessor’s visit — a party cannot in this manner, acquire rights which a court, either of law or equity, will enforce. How far the rights of a party, in a court of law, may depend upon the motives which actuated him in making the investment, the decision of the case at bar does not require us to determine. But it is now well settled that, where a party for the sole purpose of escaping taxes, converts his personal property into United States securities, a court of justice, sitting as a court of equity, will not lend its aid for the accomplishment of any such purpose.

In Mitchell v. Leavenworth County Commissioners, 91 U. S. 206, a party for the purpose óf evading the payment of a tax on his money on deposit, which the law of Kansas required to be listed for taxation March 1, in each year, withdrew, it February 28, from a bank where it was subject to his check, converted it into notes of the United States, and deposited them to his general credit March 3; and the state court passed a decree, dismissing a bill in equity by him filed to restrain the collection of the tax thereon. It was held, Waite, C. J., delivering the opinion of the court, that the decree was correct •; and that, although such notes were exempt from taxation by or under state or municipal authority, a court of equity would not use its extraordinary powers, to promote such a scheme devised for the purpose of enabling a party to escape his proportionate share of the burdens of taxation. See also Albany City Bank v. Maher, 19 Blatchf. 182.

The original action herein was at law, with prayer for a money judgment. But the county treasurer claiming protection under the duplicate, was clothed with power, at any time to distrain sufficient goods and chattels of the defendant, if found within his county, to pay taxes remaining due. The defendant, therefore, in his answer, invoked the equity powers of the court, and prayed that the plaintiff be enjoined from collecting or attempting to collect the amount charged against him on the duplicate. The court rendered judgment for the defendant instead of granting an injunction. But, had the treasurer proceeded to distrain, and had the plaintiff in error sought to enjoin proceedings, it is clear that the latter would have had no standing in a court of equity.

Judgment affirmed,.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    The State v. Elson.

      Grand jury — Qualification of members — Sec. 5164, Rev. Stats.

    The provision in section 5164 of the Kevised Statutes, as amended April 29, 1885 (82 Ohio L. 166) that “the trustees of each township, and the councilmen of each ward, shall, on the day of the regular state election, annually, select of good, judicious persons, having the qualifications of an elector, who have not served as a regular juror in any court of record in the county during the two years last past, and not exempt by law from, serving as jurors, the number of persons designated in the notice to be returned for jurors therefrom,” does not so far disqualify persons who have so served on a regular jury as to render invalid indictments found by grand juries of which they were members.
    (Decided March 27, 1888.)
    Bill of Exceptions by the prosecuting attorney to the decision of the court of common pleas of Coshocton county.
    At the January term, 1888, of the court of common pleas of Coshocton county, John D. Elson, Jr., and four others were jointly indicted for an assault and battery with felonious intent, upon the person of Enoch A. Randles.
    One of the grand jurors who returned the indicment had served as a regular juror in a court of record in said county within the two years next preceding the finding of the indictment.
    This was made the ground of a plea in abatement filed by the defendants, to which the prosecutor demurred. The demurrer was overruled, and the plea sustained, to which the prosecutor excepted and duly took a bill of exceptions.
    The prosecuting attorney thereupon, on leave, filed his bill of exceptions in this court “ for its decision upon the points presented.”

      8. H. Nicholas, prosecuting attorney, for the state.

      H. M. Voorhes, contra.

   Williams, J.

The holding of the court of common pleas, in effect, was that the provision in section 5164 of the Revised Statutes, as amended April 29th, 1885 (82 O. L. 166), that “ the trustees of each township, and the council men of each ward, shall, on the day of the regular state election, annually, select of good j udicious persons, having the qualifications of an elector, who have not served as a regular juror in any court of record in the county during the two years last past, and not exempt bylaw from serving as jurors, the number of persons designated in the notice to be returned for jurors therefrom” so far disqualifies persons who have so served on a regular jury, as to render invalid indictments found by grand juries of which they were members.

This, we think was error. Other statutes, similar in their provisions, have undergone construction, and quite the converse of the proposition held by the common pleas, established.

In Vermont it is held that a statute forbidding the name of a person once drawn as a juror to be again put into the jury box within two years, does not so far disqualify a person whose name is drawn within that time that an indictment found by a grand jury of which a person so drawn is a member, will be thereby rendered invalid.” State v. Cox, 52 Vt. 471.

In the opinion in that case the court say : The statute was designed to serve two purposes; one, as matter of favor to men who might otherwise be compelled to do an undue proportion of that kind of service ; the other, as matter of favor to the board of civil authority, and to the proper administration of justice, by rendering it feasible and easy, and without giving personal offense, to give a respite to some men, who so hanker for the doing of that line of public service, as to cause them to see to it that their names are kept year after year in the jury box, and themselves in the jury seats.”

In the state of New York, a statute which made it the duty of the supervisors of the several counties, at their annual meeting, to select the grand jurors for the following year, and to prepare a list, to contain a certain number of names for that purpose, contained the provision that, “ the said supervisors are hereby strictly enjoined and required to select and place in such list the names of such men only as they shall know or have reason to believe to be possessed of the necessary property qualifications to sit as petit jurors in such county, and to be men of approved integrity, of fair character, of sound mind, and well informed.” It was also provided that petit jurors must be freeholders. A plea in abatement to an indictment on the ground that one of the grand jurors was not a freeholder brought the statute under construction, and upon it the court said : It is very evident that this provision of the statute is merely directory to the supervisors. The very form of the expressions used most clearly indicates it. They are strictly enjoined and required to select, etc. It is impressed upon them as a duty to select .su'ch men only as possess, or as they have reason to believe possess, the qualifications enumerated in the statute; that is, property, approved integrity, fair character, sound judgment and information. The want of integrity, or judgment, or information would be, so far as the statute is concerned, as valid a ground of objection to a grand juror as the. want of property. They are all put upon the same footing; and I imagine it would hardly be contended that it would be a good plea in avoidance of an indictment, that one or more of the grand jurors were not men of fair character, or sound judgment, or well informed. The statute does not say ..that none but men of that description shall be competent to .sit as grand jurors; but it enjoins it as a duty upon the supervisors to selectmen who possess, or who they have reason to believe possess such qualifications. The distinction between a mere direction to a ministerial officer in a case like this, and a condition precedent to the competency of an individual to serve as a grand juror, is too obvious to require illustration; and the intention of the legislature is too clear to admit of any doubt.” People v. Jewett, 6 Wend. 386; and see United States v. Reeves, 3 Wood, 199; Thompson on Juries, 636.

In the light of these authorities, no extended discussion of our statute is necessary. It does not provide that persons who have served as regular jurors during the two years last past shall not be competent to sit on a jury, "nor that persons who are exempt by law shall be incompetent. It is not contended that the latter are disqualified; and yet the provision that persons of that class shall not be selected is quite as mandatory on the trustees and councilmen as that persons of the former class shall not be. Indeed their duty to omit both classes is enjoined by the same clause; and it is not easy to see why any more serious consequences should result from the presence on the grand jury, of a person belonging to the former class, than of one belonging to the latter.

It is argued that the purpose of the statute was to quietly relegate to peaceful retirement the professional juror whose usefulness had become involved in some doubt. But the professional juror is .an outgrowth of the system of selecting tales-men from the bystanders; hence provision was made by which jurors who had served as talesmen could be excluded from again sitting on a jury for a year. It was not against the regular juror, who attended under the compulsory process of the court, that complaint was made; yet, if the consequences ascribed by the court of common pleas attach to the presence on a jury of one who had, within the two years before, served as a regular juror, it would result that, in attempting to suppress professional j urors, tbe legislature had prescribed a shorter period of exclusion for the obnoxious class than for those not really objectionable. Conceding that the amendment to the section referred to was intended the more certainly to effectuate the purpose indicated, it is not necessary to that end, to hold that such' disqualification attaches to the persons directed to be omitted from the list to be returned for jurors, as to render invalid verdicts and indictments returned by juries on which they serve.

In arriving at the purpose, and effect to be given the amended section, regard must be had to the other provisions of the statute of which it is part. The statute requires the court of common pleas at its first term in each year to determine the number of persons necessary to be selected in each county for grand and petit jurors for the various courts, and this number is to be apportioned by the clerk to the several townships and wards of municipal corporations in the county, according to the number of electors. This apportionment he delivers to the sheriff, who inserts in his proclamation for the general election, notice of the number of persons to be returned as jurors for the several townships and wards. Then follows the provision of section 5164 before quoted. From all which, it is apparent, the purpose was to equalize among the electors of the county the burden of the jury service; and the provision of the amended section requiring the trustees and councilmen, in the selection of persons to be returned for jurors, to omit the classes of persons therein mentioned, w-as intended for the benefit of persons embraced in those classes, and does not operate to so fa-r disqualify persons of either class as to render indictments found by grand juries of which they were members, invalid.

Exceptions sustained.


author: Minshall, J.

text:
    Alsdorf v. Reed.

      Mortgage — Foreclosure—Attachment^-Right to trial by jury — Appeal-
    1. Where, in proceedings in attachment, the process of garnishment is served upon one who is indebtebted 16 the defendant upon notes secured by mortgage, and judgment is rendered for the plaintiff, the notes and mortgage are in legal effect assigned to the plaintiff, and he may maintain an action to foreclose the mortgage; and this is so whether the garnishee admits or denies the indebtedness in his answer; if it is denied, the plaintiff may proceed against him for an unsatisfactory answer and the foreclosure of the mortgage in the same action.
    2. Where, in such action, the prayer is for an ordinary decree of foreclosure and order of sale, the action is one for relief other than money only; and, although an issue of fact may be joined on a plea by the garnishee that he had paid the mortgage indebtedness before notice of garnishment was served on him, neither party is entitled to demand a jury for the trial of the issue, and either may appeal from a final judgment rendered against him in the action.
    (Decided March 27, 1888.)
    Error to the Circuit Court of Licking County.
    Tbe judgment sought to be reversed was one dismissing an appeal taken by Alsdorf from a judgment of the court of common pleas. The action in which the judgment of the common pleas was rendered was begun in that court by Alsdorf against John Reed, Isaac Vanatta, Florence Vanatta, his wife, Joseph Conrad and Joseph II. Conrad. Alsdorf alleged in his petition that on the 26th of May 1880, he commenced a suit in that court against Reed on a note that had been made to him by Reed; that he caused an order of attachment to issue therein against Reed, and process of garnishment to be served upon Vanatta and his wife; that Florence Vanatta, the wife, answered as garnishee, saying that she and her husband had made their notes to Reed; that she did not remember their amount, date or when payable; that they were secured by mortgage on the land they lived on; that her husband had told her that the notes were paid, and that she was satisfied that they had been paid. That afterwards, in April, 1882, he recovered in his action a judgment against Reed, for $2,015.80 and costs of suit to be satisfied from tbe moneys and credits garnisheed, including such money as may be owing by Florence Vanatta; that her answer as garnishee was not satisfactory ; that at the time she and her husband were served with notice, and when the judgment was rendered in his favor against Reed, she was indebted to Reed in the sum of $2,200 or more on the notes in her answer mentioned.
    It is futher averred.in the petition that on February 16, 1870, Reed sold and conveyed to Florence in fee 200 acres of land situated in said county, for $13,000 for which in part she made to Reed nine notes of $1000,00 each, dated September 1st, 1869, and payable, one in two years, and the others, one annually until 1879, with interest, and that she and her husband executed a mortgage upon the same lands to secure the notes, which was recorded, and a full description is given of the land. It is then averred that when she was served with notice as garnishee, the notes were all due, but not all paid; and that the condition of the mortgage is broken; and that the said Conrad had or claimed some interest in the land.
    The prayer of the petition is that an account may be taken of the amount remaining due upon the mortgage indebtedness of the Vanattas to Reed, and that an amount not exceeding the sum due on plaintiffs judgment may be ordered to be paid to him by said Florence Vanatta, and that in default of such payment the lands, or so much thereof as may be necessary, may be ordered sold for the payment of the same.
    The Vanattas answered, not denying the making of the notes and mortgage, but alleging that the notes had been paid. The Conrads answered, alleging that they had bought the lands from the Vanattas, and that Reed had released the mortgage. Alsdorf filed replies denying both the payment and the release.
    The issue of payment was submitted by the court to a jury, which found in favor of the defendants, on which the common pleas rendered judgment dismissing the action. The plaintiff appealed to the district court, and, on motion, the cause was dismissed by the circuit court on the ground that the case is not appealable. And this is the only question presented in the case for review.

      J. Buckingham and Dennis & Dennis, for plaintiff in error.

      J. W. Owens, Kibler & Kibler and Charles II. Follett, for defendants in error.
   Minshall, J.

The legal effect of the garnishment of a debtor of the defendant is, where judgment is rendered for thé plaintiff, to transfer the indebtedness of the garnishee to the plaintiff in the attachment so far as. the same may be necessary. to satisfy his judgment. Secor v. Witter, 39 Ohio St. 218. And as a security is always regarded as an incident to the debt,: it follows that where the indebtedness of the garnishee is secured by mortgage, the garnishment of the indebtedness carrieswith it the mortgage. Edwards v. Edwards, 24 Ohio St. 411. It is true that this was the case of a creditor’s bill, but no reason is perceived why a creditor should not be entitled to the securities held by his debtor in the one case as well as in the other. The garnishee may be insolvent, but his indebtedness to the plaintiff’s debtor may be amply secured by mortgage, and, for such reason, of the same value as if the debtor was entirely solvent; and it is this value that, as a part of the effects of the debtor, the creditor is entitled to have applied to the satisfaction of his claim.

So that, in this case, Alsdorf by the garnishment of the Vanatt-as, acquired the right to foreclose the mortgage they had executed to Eccd, unless the indebtedness had been paid before the process was served on them. This is what, as appears from his petition, Alsdorf sought to do. He set forth the proceedings in his suit in attachment against Eecd, the garnishment of the "Vanattas, and the judgment and an order in his favor, the execution and record of the mortgage, with a description of the property, and averred that the notes were all due but not all paid, and prayed for a foreclosure and an order of sale. He might have ignored the existence of the mortgage, and have asked for a personal judgment only against the garnishee, upon the averment that her answer was unsatisfactory; in other words, that, as a matter of fact, she was indebted to Eeed. In such case there would be but little room for doubt, that neither party could have appealed from the judgment that might have been rendered in the action. In saying this we ignore for the time being the coverture of Florence Vanatta. He has, however, omitted the pursuit of this remedy, and seeks a foreclosure of the mortgage and an order of sale. Prudential reasons may have, and no doubt did, determine him in taking this course. A judgment for money only would have simply placed him upon a footing with the general creditors of the garnishee, and so might have been of no avail. But in foreclosing the mortgage he succeeds to the rights of Reed, and is entitled to be paid according to the priority of the mortgage as a lien upon the land.

If instead of having acquired his right to foreclose the mortgage by process of garnishment, it had been assigned to him by Reed as a security for his debt, it will not be claimed that in a suit to foreclose it and for an order of sale, without a prayer for a personal judgment upon the notes, either party would have been entitled to a jury trial upon any issue of fact that might have been joined; and, as a consequence, neither could have appealed from any judgment against him in the action. Ladd v. James, 10 Ohio St. 437. But the right to appeal does not depend upon the manner in which the title to the mortgage may have been acquired; this right is determined by the nature of the relief that is sought and obtained. "When a money judgment will answer the demand of the plaintiff, is all that is sought and all that is obtained, either party is entitled to a jury trial upon any issue of fact joined in the action, and no appeal can be had from the judgment rendered. Dunn v. Kanmacher, 26 Ohio St. 497; Chapman v. Lee, 45 Ohio St. 356; Brundridge v. Goodlove, 30 Ohio St. 374; Averill Coal & Oil Co. v. Verner, 22 Ohio St. 372. Where, however, other relief is required, as the reformation of an instrument, preparatory to a recovery of damages for a breach of it, as was the case in Rowland v. Entrekin, 27 Ohio St. 47, and also in Ellsworth v. Holcomb, 28 Ohio St. 66; or, where an order of sale and a distribution of the fund is required as in the forclosure of a mortgage, the relief sought goes beyond a mere money judgment, and either party may appeal from the judgment against him. Ladd v. James, supra, and Fleming v. Kerkendall, 31 Ohio St. 568.

But, in this case the garnishee, Florence Yanatta, who appeared and answered, was a married woman. She seems to have been the principal in the indebtedness, as the land mortgaged had been sold and conveyed to her. No personal judgment could at that time have been rendered against her as garnishee; the most that could have been done as against her, would have been to make the amount found due a charge upon her separate estate, and have ordered it sold, unless paid. Phillips v. Graves, 20 Ohio St. 371. And this is another reason for holding that the action was appealable. Avery v. Vansickle, 35 Ohio St. 270. ~We think the circuit court erred in dismissing the appeal.

Judgment reversed and cause remanded for further proceedings.


author: Owen, C. J.

text:
    Bailey v. Swain.

      Replevin — What may be proved under general denial.

    Where the plaintiff in an action of replevin alleges his ownership of the goods in question, his right to the immediate possession of them, and their unlawful detention by the defendant, the latter may, under a general denial, prove that as an officer he levied upon the goods at the suit of a creditor of one from whom the plaintiff obtained them and that the transfer to the latter was fraudulent and void as against creditors.
    (Decided March 27, 1888)
    Error, to the Circuit Court of Paulding County.
    The original action was in replevin. The plaintiff alleged in the usual form that he was the owner and entitled to the immediate possession of the chattels described in the petition, and that the defendant unlawfully detained them from his possession, to his damage. An order was issued, bond given,^ property taken and delivered to the plaintiff.
    In his answer the defendant denied all the allegations contained in the petition. Upon the issue thus joined the case proceedecl to trial to a jury. The plaintiff gave evidence tending to prove the averments of his petition, and rested. Thereupon the defendant was permitted to offer evidence tending to prove that as constable he seized and detained the goods in question by virtue of an order of attachment issued by a justice of the peace at the suit of one Peter Kemler, and against one Moses Rodgers; the amount of the judgment recovered in that action; previous ownership and possession of the property by Rodgers; and a fraudulent transfer of it from Rodgers to Bailey, the plaintiff. This evidence was received over the objection of the plaintiff, to which he excepted. The ground of the objection and exception is that all this was new matter and not admissible under the general issue, and not without a plea of such new matter and prayer for affirmative relief. Under the instructions of the court the jury found for the defendant, and assessed his damages at $232.32, for which judgment was rendered, with costs, for the defendant. This judgment was affirmed in the circuit court, and it is to reverse this judgment that the present proceeding is prosecuted.
    Numerous exceptions were taken during the trial, but so far as they are involved in the single question upon which the case is reported, they depend upon the admissibilii y of the evidence offered by the defendant as before indicated.

      W. J. Beers and Mann & Shuster, for plaintiff in error.

      Thomas Emery and T. B. Holland, for defendant in error.
   Owen, C. J.

The plaintiff alleged in his petition his ownership, his right to the immediate possession, and the unlawful detention by the defendant, of the goods in question. If he was able to make these facts appear, he was entitled to a verdict, no matter what facts outside of or beyond these the proof disclosed. It is impossible to conceive of a state of facts or condition of circumstances which would have entitled the defendant to a verdict, if the statements íd the petition were true; that is, if the plaintiff owned the goods; if he was entitled to the immediate possession of them, and the defendant unlawfully detained them from his possession, a lawful verdict for the defendant would have been an impossibility.

The defendant denied, and thereby put the plaintiff upon his proof of, all of these averments. Proof that the defendant was the owner of the goods, was, at the same time, proof that the plaintiff was not. Proof that the defendant was, at the commencement of this action, entitled to the possession of the goods, was also proof that the plaintiff was not. Proof that the defendant legally and rightfully held the goods in his possession, also established that he did not unlawfully detain them from the possession of the plaintiff. All this proof was directly and clearly responsive to the issue joined, and was not in the slightest degree in the nature of “new matter constituting defense, counter-claim or set-off.” The result was, simply, that the plaintiff failed to prove the facts stated in his petition and which were indispensable to his recovery. Proof that the attachment plaintiff was a creditor of the vendor or assignor of Bailey, and that as against himself, the former obtained no valid title to the goods, by reason of fraud in the sale, was directly responsive to the issue.

It is no answer to this to say that the plaintiff’s title, even, if fraudulently acquired, was good between the parties to the transfer, and as against all the world except creditors. For while this is true, the issue was joined with a creditor. The plaintiff voluntarily challenged an inquiry into the right of a creditor to seize the goods in satisfaction of his debt against the plaintiff’s fraudulent assignor. Even if the relation of' creditor had been absent from the controversy, the rule of' pleading would not have been changed, for in that case proof of the fraudulent transfer would have been entirely irrelevant,, and no form of pleading could have rendered it admissible.

While no rule of pleading peculiar to replevin proceeding» is expressly prescribed by the statute, it seems quite clear from its provisions that they contemplate that the trial shall proceed in any case upon an issue substantially in the form adopted in the case at bar. Section 5826 provides that: “ When the property is delivered to the plaintiff, * * * if the jury, upon issue joined, find for the defendant, they shall. also find whether the defendant had the right of property, or the right of possession only, at the commencement of the suit; and if they find either in his favor, they shall assess to him such damages as they think right and proper, for which, with costs of suit, the court shall render judgment for the defendant.” This provision requires the jury, after finding upon the issue joined for the defendant, to proceed to find if the right by which he detained the property, was a proprietary or simply a possessory right, and in either case to assess to him such damages as they think right and proper. This provision was abundant notice to the plaintiff that if the property should be delivered to him, and he should fail to establish a right of possession superior to that of the defendant, the jury would be called upon, in that action, to ascertain the defendant’s interest in the property with a view to an assessment of his daxnages.

We are not left without the light of adjudication to aid us in solving the question at bar.

Section 7 of an act passed in 1831 (Swan Stat. 1841, p. 786), provided:

“That in all cases, upon issue joined, where the jury shall find for the defendant, they shall also find, whether the defendant had the right of property in the goods and chattels, or the right of possession only, at the commencement of suit; and if they shall find either in his favor, they shall assess such damages as they may think right and proper for the defendant, on which, with costs of suit, judgment shall be rendered by the court.”

As showing the view of this statute, taken by this coui’t, we cite the case of Oaks v. Wyatt, 10 Ohio, 344.

“ This was an action of replevin. The declaration was in the common form. Plea, non detinet. On the trial, befox-e Judges Lane and Grimke, in the county of Cuyahoga, the defendant offered to prove that he levied upon and held the property in dispute, as a constable, by virtue of three executions against the goods and chattels of one George B. Sperring. The plaintiff objected to the admission of this testimony under the issue of non detinet, without special plea, or notice. The objection was ovei’ruled, and a bill of exceptions taken.” Application was made for tbe allowance of a writ of error, but refused.

This case was followed and approved in the case of Ferrell v. Humphrey, 12 Ohio, 113. It was said in that case : “In the action of replevin, under our statute, the jury are bound to inquire into the right of property, and right of possession, of the defendant, in the goods and chattels in controversy, and if they shall find him entitled to either, they shall assess such damages as are right and proper. Swan Stat. 786. Both these questions are put in issue by the plea of non detinet, as was decided by this court on application for a writ of error, in the case of Oaks v. Wyatt, 10 Ohio, 344.”

These adjudications are a negative answer to the claim of counsel that when an officer would seek to justify his possession of chattels, by proving a seizure of them under a writ held by him, he must first plead it. So far as it affects the question before us, section 184 of the original code of civil procedure was substantially like the present section 5826 of the Revised Statutes, already quoted. The code commissioners said of the replevin chapter of the proposed code submitted by them: “ IVe have done little more than copy the old acts. Where the property is taken, the proceedings will be the same in substance as now.” Indeed, there is no such charge in the statutes concerning replevin as to suggesst a different rule of pleading from that indicated in Oaks v. Wyatt, supra.

The decided weight of adjudication in other states whose statutes are substantially like our own, is found to support the view adopted by the courts below. School District v. Shoemaker, 5 Neb. 36; Creighton v. Newton, 5 Neb. 100; Richardson v. Steele, 9 Neb. 483. In the latter case the court say: “ Whatever may have been the law formerly, or may be now, in those states which have not materially departed from the common law system of pleading, it must be considered as settled both in this state and in Ohio, whose code and practice we have in great measure followed, that in replevin a general denial puts in issue every material allegation of the petition, and under it the defendant may give evidence of any special matter which, amounts to a defense to the plaintiff’s cause of action.”

Sopris v. Truax, 1 Col. 89; The court say in this case: “ The rule which requires that fraud be specially pleaded does not apply to the action of replevin.”

To the same effect is Snook v. Davis, 6 Mich. 156. The action was replevin. The defendant pleaded the general issue. Plaintiff offered his evidence, including a written instrument purporting to evidence the transfer of the property in question from one Robertson to plaintiff, and rested his case.

The defense gave in evidence, under exception, a judgment in the United States district court for Michigan, in favor of Messrs. Peckhams against Robertson, in the year 1852, by virtue of an execution upon which the defendant Golby, as special deputy of Davis, who was United States marshal, took the goods as the property of Robertson. Defendants also gave evidence tending to show, as they claimed, that the agreement before cited (that put in evidence by plaintiff), was fraudulent in fact, as against the creditors of Robertson, and was intended as a mere cover to protect the property of Robertson from legal process in favor of his creditors.

The court held the defense admissible without notice.

In Jansen v. Effey, 10 Iowa, 227, it was held that: “The peculiar common law pleadings in replevin do not exist under our present system. In order to constitute the plaintiff’s right on the face of his petition, he is to allege certain things, such as the right of possession, which may include that of property, the wrongful detention, and that it was not taken by legal process; if it was, that it was exempt. A denial of these and putting them in issue, is sufficient, and the plaintiff is to maintain his claim and right set up in the petition, and there is no such technical effect to be given the answer as was given to some of the common law pleas.”

Holmberg v. Dean, 21 Kan. 73, was a case like the one at bar in all material respects. It was held that under a general denial in replevin the defendant could prove a levy by himself as sheriff, and that the plaintiff’s title is fraudulent and void as to creditors. Also in Branch v. Wiseman, 51 Ind. 1, it was held that the defendant in a replevin case may, under a general denial, show title in a third person, or introdnce any competent evidence tending to prove that the title is not in the plaintiff. As in the case at bar, the defendant below had proved a levy by himself as an officer.

This view is also sustained by Staubach v. Rexford, 2 Mont. 566; Verry v. Small, 16 Gray, 121.

Counsel for plaintiff in error relies upon Pomeroy’s Rem., sec. 678, et seq., where it is said that under a general denial in replevin the defendant cannot show that the plaintiff’s title is fraudulent and void as against his creditors, nor can he justify as sheriff under process against A., and assert that the goods were the property of A., fraudulently transferred to the plaintiff. The two eases cited and relied upon to support this view are Frisbee v. Langworthy, 11 Wis. 375; and Glazer v. Clift, 10 Cal. 303.

These cases contain no allusion to local statutes, while the California case is expressly put upon what was conceived to have been the common law rule of pleading in such cases.

The courts below were right. This conclusion renders unnecessary the consideration of other questions of practice presented by the record.

Judgment affirmed.


author: By the Court.

text:
    The State v. Richard Winch.

      Constitutional Law — Sec. 26, Article 2 — Act of April 12, 1876, void.

    (Decided April 24, 1888.)
    Exceptions by the prosecuting attorney.to the ruling of the Court of Common Pleas of Medina County.

      J. W. Seymour, prosecuting attorney, and Boynton, Fíale & Horr, for the state.

      F. L. Hessenmueller, contra.

   By the Court.

An act passed April 12, 1876 (73 Ohio L. 321), to prevent gambling and the sale of intoxicating liquors on or within a distance of two miles of Chippewa Lake, in the county of Medina,” is in contravention of section 26, article 2, of the constitution of this state, which ordains that all laws of a general nature shall have a uniform operation throughout the state,” and is consequently void.

Exceptions overruled.