author: Bradbury, J.

text:
    State, ex rel. Poe, v. Raine.

      County and City Boards of Equalization — Powers and duties of.

    1. The statute prescribing the duties of annual county and city boards of equalization, provides: “That said board shall not reduce the value of the real property of the county below the aggregate value thereof, as fixed by the state board of equalization, nor below the aggregate value on the duplicate of the preceding year, to which shall be added the value of all new entries and new structures, over the value of- those destroyed, as returned by the several township assessors for the current year.” This provisio prohibits such boards, while engaged in equalizing the duplicate of the preceding year, from reducing the valuation of any lot or tract of land appearing on such duplicate, unless, at the time, they increase the valuation of other parcels of land then on the duplicate to an amount equal, at least, to such attempted reduction.
    2. The circumstance that such hoards, in, equalizing the valuation of new structures, largely add to the values thereof, as the same were fixed by the ward or township assessors, or by the county auditor, will not authorize them to reduce the valuation of any lot or tract of land that stood on the duplicate of the preceding year.
    3. When the valuation of new structures has been equalized by such boards, and from the aggregate amount thereof as thus equalized the aggregate value of all structures destroyed has been deductedj the amount then remaining should be added to the duplicate of the preceding year, after the same has been equalized pursuant to law.
    4. Where such boards undertake to reduce the valuation of certain lots or tracts of land found on the duplicate of the preceding year without adding to other parcels thereof an amount at least equal to the attempted reduction, they exceed their authority, and their action being without warrant of law, should be disregarded by the county auditor, and if, instead of disregarding the same, he transfers to the new tax duplicate such lands at the reduced valuation, the error thereby committed is not fundamental, but is a clerical one, which it is his duty to correct; and the auditor of state has authority to direct and require him to make the correction.
    (Decided June 27, 1890.)
    Error to the Circuit Court of Hamilton county.
    The facts will be stated in the opinion.

      I). K. Watson, Attorney General, and .Rufus B. Smith, and Thomas McBougall, for plaintiff in error,
    cited and commented upon the following statutes and authorities: Sections 166, 167, 1036, 1038, 1039, 1040, 2800, 2803, 2804, 2807, 2808, 2814, and 2816, Revised Statutes; 77 Ohio L. 130; 83 Ohio L. 194; 83 Ohio L. 232; 1 Chase, 171, Secs. 12 and 13, Territorial Laws, adopted June 19,1795; 1 Chase, 269, Secs. 8 and 9, Dec. 19, 1799; 1 Chase, 973, Sec.' 2, 1816; 2 Chase, 1480, Secs. 18, 20; Curwin 117, c. 10, Sec. 17; 2 Curwen, 1260, the act of March 2, 1846, Sec. 44; 3 Curwen, 1763, Secs. 60 and 61, and the act of 1859; 4 Curwen, 3304, Secs. 44, 45; Gazlay v. Humphreys, 1 Law Bull. 114; Foster v. Fenton, 2 Law Bull. 54; Cooley on Taxation, 270; 1 Potter’s Dwarris on Statutes, 73; Chitty’s notes to 1 Blackstone’s Commentaries, 86; Bouvier’s Law Dictionary; Hudler v. Golden, 36 N. Y. 446; Haskel v. The City of Burlington, 30 Iowa 232; United States v. Hodson, 10 Wallace 406; City of New Orleans v. Railroad Company, 35 Louisiana 659; Jacksonville v. Basnett, 29 Fla. 525; Sedgwick on Stat. and Con. Laws, 308 and note; Wade on Retroactive Laws, paragraph 253; Tallman v. Janesville, 17 Wis. 77 and 78; 1 Kent’s Commentaries, 493; Dwarris on Statutes, 632; 30 N. H. 505; 2 Peters 539; 7 Johns. 477; 20 Ohio St. 369; 22 Ind. 204; Cooley on Taxation, 225, (special curative acts.) Cross v. Milwaukee, 19 Wis. 509; Cooley on Taxation, 2 ed., 232; Cornwell v. Todd, 38 Conn. 443; 78 Ohio L. 47; Drande v. Staley, 6 Bull. 773; Cooley on Taxation, 291; Nevada v. Washoo County, 5 Nev. 264, 267; Sioux City Pacific R. R. v. Washington County, 3 Neb. 42; Cooley on Taxation, 2 ed., 419; Burroughs on Taxation, 234, 236; The People v. Monroe Ashley, 44 Cal.; People ex rel. v. Monroe Ashley, Auditor, 46 Cal. 524.

      Wm. A. Bavidson and Fred. Hertenstein, County Solicitors, and Brausin Wulsin, Paxton WarringtonzxA. O.J. Cosgrave, for defendants in- error,
    commented upon the above statutes and authorities, and also cited and commented upon the following statutes and authorities. Sections 166, 167, 1036, 1039, 1040, 2753, 2800, 2803, 2804, and 6741, Revised Statutes ; Vol. 83, O. L. 194 and 195; Insurance Company v. Cappellar, 38 Ohio St. 574; State of Ohio ex rel. v. Comm’rs, 31 Ohio St. 271; Butler v. Comm’rs, 39 Ohio St. 168; State of Ohio ex rel. v. Cappellar, 5 W. L. B. 833; Perin v. Comm’rs, 6 W. L. B. 673; Sandhager v. Comm’rs, 9 W. L. B. 20; Ohio ex rel. v. Brewster, 11 W. L. B. 39-41; Comm’rs v. Eckstein, 8 Law Record 749; Ives v. Comm’rs, 10 Law Record 306; Chatfield & Woods v. Comm’rs, 21 W. L. B. 315; Mitchell v. Comm’rs, 22 W. L. B. 292; Drande v. Staley, 6 Law Bulletin 773; Humphreys v. Safe Deposit Co., 29 Ohio St. 608; Executive Documents, Part 2, 1879, pp. 1222, 1223, Chat field & Woods, 21 Law Bull. 315; Mitchell v. County Com
      missioners, 22 Law Bull. 292; Commissioner v. Eckstein, 8 Law Record 421.
   Bradbury, J.

On April 24,1889, the plaintiff in error filed in the Circuit Court of Hamilton county a petition of which the following is a copy:

“ The relator, Ebenezer W. Poe, says that he is now and has been since the ninth day of January, 1888, the duly elected, qualified and acting auditor of the state of Ohio, and that the defendant, Fred. Raine, is now and has been since the eighth day of November, 1886, the duly elected, qualified and acting auditor of Hamilton county.

“ Relator further says that the city of Cincinnati is a city of the first grade and of the first class, and was during the period of time hereinafter referred to; and that the values of different pieces of property in said city are and, during the period of time hereinafter referred to, were equalized by an annual board of equalization, as provided in the statutes of the state.

“Relator further says that the total amounts added to and deducted from the values of different pieces of realty in said city by the said annual boards of equalization for the years 1884, 1885, 1886 and 1887, were as follows :

1884, deductions,.....$ 64,590

1884, additions,..... 32,580

1885, deductions,.....411,910

1885, additions, ..... 27,710

1886, deductions, ..... 237,930

1886, additions,..... 38,980

1887, deductions, ..... 470,010

1887, additions, ..... 40,570

“Relator further says that the said amounts added and deducted are in addition to and exclusive of the amounts added and deducted by said boards of equalization respectively to and .from the values of the new entries, new buildings, orchards, timber, ornamental trees and groves destroyed of each year, as said values were presented to them by the auditor of Hamilton county and the assessors of Cincinnati; and that said deductions are also in addition to and exclusive of the amount deducted by said boards themselves for buildings, orchards, timber, ornamental trees and groves destroyed in each year, where the assessor had failed to make return of the destruction of the same and to fix a value thereto.

“ Relator further says that in each of said years, from 1884 to 1887 inclusive, said boards illegally reduced the value of real property of the city of Cincinnati, below its aggregate value as fixed by the state board of equalization and below its aggregate value on the duplicate of the preceding year, exclusive of the addition of the values of new entries and new structures of each year over the value of the buildings, orchards, timber, ornamental trees and groves destroyed of each year; and that the illegal reduction in each year of said aggregate value is the difference between the several amounts added and deducted as set forth in the figures above given.

“ Relator further says that on the sixteenth day of April, 1888, the defendant as auditor of .Hamilton county addressed a communication to him as auditor of state as provided in section 166, Revised Statutes, setting forth the facts herein-before stated as to the actions of the boards of equalization of the city of Cincinnati for the years 1884, 1885, 1886 and

1887, and requesting instructions from him as to his duty in the premises; that on the twenty-fifth day of March, 1888, relator as auditor of state, addressed a communication to the defendant as auditor of Hamilton county, in which relator expressed the opinion that the said board had acted illegally in making their deductions in excess of their additions as aforesaid in each year; and instructed him that he regard such deductions as illegal and void.

“ Relator further says that on the thirty-first day of July, 1888, said auditor of Hamilton county addressed a communication to relator in answer to the communication of relator of the twenty-fifth day of March, 1888, as aforesaid; that in said communication said auditor declined to regard as illegal the deductions, or any part thereof made during the years 1884, 1885, 1886 and. 1887 by said boards of equalization; and to correct the valuation of any of the pieces of property whose values were illegally reduced by said' boards; and to charge upon the duplicate the taxes omitted by reason of said illegal deductions.

“ Wherefore relator prays that a writ of mandamus may issue commanding the defendant as auditor of Hamilton county, that he proceed according to law to correct on the duplicate for the years 1884, 1885, 1886, 1887J 1888 and 1889, the values of the property from which said deductions were illegally made; and to charge the taxes against the same according to law.”

This petition was followed by an answer and a reply, which, however, do not require any special notice, as no trial was had in the circuit court, or other proceedings had there which involved an inquiry respecting either of those pleadings-

When the cause came on for hearing in the circuit court, that court being of opinion that the issues of law arising therein should be determined before trying any issue of fact that might arise, directed counsel to argue the following questions of law:

First — Whether, assuming the allegations of the petition to be true, the auditor of state was authorized to direct and require, in the mode and manner in which it was done in this case as set forth in the petition, the auditor of Hamilton county to correct on the duplicate the valuations of .the different pieces of property from which deductions had been made and to charge against the same the taxes of the current year; and where the property had not changed hands to charge against it the taxes omitted by reason of said deduction from the time the deduction had been made.

Second — Whether assuming the allegations of the petition to be true, the action of the said boards was in violation of law.

In this connection, it was admitted by counsel that the board of equalization of the city of Cincinnati, for each of the years named in the petition, “ added to the values of new entries and new structures over the amount thereof, as fixed by the several ward assessors or the comity auditor and so presented to said boards, and over and above the amounts by the said boards deducted from the values of the new entries and new structures and of buildings destroyed, as presented to them by the ward assessors and the county auditor, including the deductions made by the boards themselves where a building had been destroyed, but its destruction had not been returned by the ward assessors, an amount far greater that the deductions made from, exceeded the additions made to, the valuation of the other pieces of real estate where such boards were of the opinion that such deductions or additions should be made on account of gross inequality in the valuation thereof.”

“ And it was further admitted that the deductions, if any, made in said city of the first grade and first class on account of orchards, timber, ornamental trees and groves destroyed, were insignificant in value.”

These questions of law having been argued by counsel the circuit court held that the “law and equity of the case are [were] with the defendant,” and dismissed the action at the cost of the plaintiff.

These proceedings in the action not only appear in the journal entries of the circuit court, but were embodied in a bill of exceptions taken by the plaintiff in error; so that, whether the one method or the other was the proper mode of preserving a record thereof for review in this court, it has been successfully accomplished. This proceeding was not such a trial as the civil code contemplates, and neither party could have been required to submit to it. It bears some analogy to the reservation of a cause to this court under the old practice, a proceeding, which, under the present practice is not permitted. The plaintiff had a right to demand and require a full trial of his case before its dismissal for want of equity, and this court, ordinarily at least, cannot be required, through the medium of a dismissal without a full trial, to pass upon questions of law that may arise in a case in advance of the determination of the facts involved therein. However, as the plaintiff in error has no ground to complain of this action of the court, unless it operated to his prejudice, which it could not do if his petition, does not contain facts entitling him to relief, it, therefore, becomes necessary to inquire into its sufficiency for that purpose. The petition is claimed to be fatally insufficient in two respects :

First — That the auditor of. state is without power to require the auditor of Hamilton county to correct the tax duplicate in respect to the matters mentioned in the petition, and,

Second — That the proceedings of the several boards of equalization, as the same are therein set forth, are not in violation of law.

That the auditor of state has no power to direct and require a county auditor to correct a duplicate unless the error sought to be corrected is one, that, under the law, the latter .officer has power to correct must be conceded; for, of course, if the county auditor has not been clothed by law with power to do an act, its performance by him cannot be required either by his superior or by courts of justice. The inquiry before us as to the authority of the auditor of state to direct the county auditor to correct the duplicate in the particulars in contention, therefore, necessarily, involves an inquiry into the power of the county auditor to perform the act thus required of him.

The several statutes giving to state and county auditors authority relating to the collection of the public revenue do not create obligations against the citizen or taxpayer; they simply provide the instrumentalities by which the revenue officers may enforce obligations imposed by the statutes which create the tax.

They are, therefore, in their character remedial; and being remedial they should be liberally construed to advance the remedy.

“ Revenue statutes being remedial in their character, are to be construed liberally to carry out the purposes of their enactment.....” United States v. Hodson, 10 Wall. 395: Haskel v. City of Burlington, 30 Iowa 232; Hudler v. Golden, 36 N. Y. 446.

The authority of a county auditor to correct errors of omission is to be found, mainly, in sections 1038, 1039 and 2800, Revised Statutes, which read as follows:

Sec. 1038. “ The auditor shall, from time to time, correct all errors which he discovers in the tax list and duplicate, either in the name of the person charged with taxes or assessments, the description of lands or other property, or when property exempt from taxation has been charged with tax, or in the amount of such taxes or assessments: . . . .”

Sec. 1039. “The county- auditor shall keep a book of ‘ additions and deductions,’ in which he shall enter all corrections of the duplicate, made after delivery of the same to the treasurer, which either increase or diminish the amount of any tax or assessment, as stated in the duplicate.....”

See. 2800. “ Each county auditor shall, from time to time, correct any errors which he may discover in the name of the owner, in the valuation, description, or quantity, of any tract or lot contained in the list of real property in his county.....”

The terms used in these sections are broad and general: No attempt is made to enumerate, specifically, the powers granted; to have undertaken to do so would have been hazardous; for if taxes should be omitted, by other errors or omissions than those enumerated, it might be successfully contended that no provision had been made for them. The object of the legislation was to provide against the escape from taxation, by error, of any property legally taxable; to accomplish this end, it wisely, and no doubt purposely, adopted general and comprehensive language with which to convey the needful authority,instead of attempting to enumerate in specific terms the powers conferred. Section 2800, Revised Statutes, authorizes the county auditor to correct any errors in the valuation “ of any tract or lot contained in the list of real property in his county.” If the city boards of equalization had no power to reduce the valuation of the several tracts, which were by them reduced, or exceeded the authority which they did have in relation thereto, then, the valuation as reduced was an erroneous one, the first power to correct which, was bestowed upon the county auditor by the terms above quoted from Section 2800, Revised Statutes.

It is contended, however, that, if this action of the board of equalization was erroneous, the error was not clerical, but fundamental, and, as a county auditor can correct clerical errors only, his powers of correction do not extend to errors of this class. We do not doubt that the power of the county auditor to correct errors is limited to such as are clerical.

It was held by this court in Ohio ex rel. of the Sister Superior etc. v. the Commissioners Montgomery County, 31 Ohio St. 271-3, that, under what is now section 1038 Revised Statutes the county auditor could not correct fundamental errors, but only such as were clerical; and’ the rule there stated applies as well to the case now under consideration, as it did to the case in which it was announced. No attempt, however, was there made to define either a fundamental, or a clerical error, or to draw a distinction between them, the court saying, merely, that, “ The question, whether specified property is or is not subject to taxation, was not, by this section of the statute, submitted to the judgment of either the auditor of the county, or the board of county commissioners.”

In Insurance Co. v. Cappellar, 38 Ohio St. 560, the court held that where an insurance company, in making its return for taxation, deducted from its assets the re-insurance fund required by statute to be reserved by it, the error was clerical and could be corrected by the county auditor. McIl-VAINE, J., on page 574, saying in this connection: “ True, it was held in State v. Commissioners of Montgomery County, 31 Ohio St. 271, that the corrections which the auditor may make under this section are merely clerical. The error to be corrected in relation to the plaintiff’s taxes was the deduction of the re-insurance item from its credits. No fact is to be inquired into. Every necessary fact appears on the face of the return. Charge the proper rate of taxes upon the amount of credits returned without any deduction on account of the reinsurance item, and the error in the amount of plaintiff’s taxes will be corrected, — clerical work merely.” This case shows that the term “ clerical error ” is not limited to snch mistakes as occur in copying or in computations. Errors by which property escapes its lawful share of taxation must of necessity be either fundamental, and thus beyond the power of a county auditor to correct, or clerical merely, and therefore within that power. The difficulty, however, lies in the attempt to distinguish them. While we are not required in this case to lay down rules, if that were possible, by which, in all cases, the character of these errors — as being fundamental or merely clerical — may be determined, yet, certainly, those only are to be deemed fundamental that pertain to the very foundation upon which a tax rests; this of course includes defects and imperfections in the law itself, and errors of judgment committed by public boards acting within the scope of their authority. But can an error be said to be fundamental and thereby placed beyond the power of a county auditor to correct, where it has been committed by a board of equalization, or by any other board or officer while acting without authority of law, or in excess thereof? We think not; and if, when we come to examine the acts of the boards of equalization which are under consideration in this action, it shall appear that they acted without warrant of law or exceeded their authority, their errors, so committed, are not in any proper sense of the term fundamental, and may therefore be corrected by the county auditor.

If a county auditor has authority to correct the duplicate in the manner contended for, then the power conferred on the auditor of state by section 166 Revised Statutes would authorize the latter officer to direct and require the correction to be made upon any reasonable construction of its terms.

This section (166 Revised Statutes) is to be found in the chapter that prescribes the duties of auditor of state, and reads as follows: “ Section 166. He shall from time to time prepare and transmit to the auditors of the several counties in the state such forms of returns to be made by them to his office, and such instructions upon any subject affecting the state finances, or the construction of any statute, the execution of which devolves in part upon county auditors and which affects the interests of the state, as he deems conducive to the best interests of the state; and county auditors and all local officers acting under such laws, shall observe and use such forms and obey such instructions.”

The powers vested in the auditor of state by this section are of the most ample and comprehensive character. It is difficult to conceive a form of expression that could add to the power thus conferred. True, the authority of an auditor of state to direct and require a county auditor to restore the old valuation to the duplicate, if it had been erroneously decreased, is not given in direct and specific terms, but that such authority is embraced within this general gift of power does not admit of any serious doubt. The only remaining question is as to the power of the annual city boards of equalizations to make the deductions complained of in the petition.

The authority of these boards is to be found in the following sections of the Revised Statutes: Section 2805 provides, that city boards of equalization in cities of the class to which Cincinnati belongs, shall be “ governed by the rules, provisions, and limitations prescribed in the next preceding section for the annual county board.” The rules prescribed in that section (2804 Revised Statutes) for annual county boards of equalization are : Said board shall have the power to hear complaints and to equalise the valuation of all real and personal property, moneys, and credits within the county, and shall be governed by the rules prescribed for the government of decennial county boards for the equalization of real property: provided, that said board shall not reduce the value of the real property of the county below the aggregate value thereof, as fixed by the state board of equalization, nor below its aggregate value on the duplicate of the preceding year, to which shall be added the value of all new entries and new structures over..the value of those destroyed, as returned by the several township assessors for the current year; provided, further, that except as to new structures and structures destroyed and lands and lots brought on to the tax list since the preceding decennial state board of equalization, the annual county board shall not increase or reduce the valuation of any real estate, except in cases of gross inequality, and then only upon reasonable notice to all persons directly interested, and an opportunity for a full hearing of the questions involved.”

This last section, it will be observed, refers to and adopts the rules prescribed for the government of decennial county boards for the equalization of real property; which rules are to be found in section 2814 Revised Statutes.

“ Sec. 2814. The auditor shall lay before the board the returns made by the district assessors, with the additions which he shall have made thereto; and they shall then immediately proceed to equalize such valuations, so that each tract or lot shall be entered on the tax list at its true value, and for this purpose they shall observe the following rules 1. They shall raise the valuation of such tracts and lots of real property as, in their opinion, have been returned below their true value to such price or sum as they may believe to be the true value thereof, agreeably to the rules prescribed by this title for the valuation thereof; 2. They shall reduce the Valuation of such tracts and lots as, in their opinion, have been returned above their true value, as compared with the average valuation of the real property of such county, having due regard to their relative situation, quality of soil, improvements, natural and artificial advantages possessed by each tract or lot; 3. They shall not reduce the aggregate value of the real property of the county below the aggregate value thereof, as returned by the assessors, with the addition made thereto by the auditor, as hereinbefore required.”

An examination of the whole chapter of the Revised Statutes relating to the appraisement for taxation of the real property of the state will disclose two legislative objects; one, that the decennial appraisement of real estate, as finally equalized by the state board of equalization, shall not be reduced by the subsequent action of the successive annual boards of equalization'; the other, that to this valuation there . shall be added, from year to year, the net annual increase that may result from the growth and development of the county. Nor is it inconsistent with this general purpose that the annual boards may give relief where structures have been destroyed and none erected, or not enough to equal the value of those destroyed. It may be true that a fair construction of the statutes relating to that particular matter, will, in that contingency, permit a reduction from the aggre-' gate valuation on the duplicate of the preceding year, but this question is not involved in the case under consideration, and no opinion will be expressed in respect thereof. If these objects are kept in view, it will not be difficult to determine that the action of the annual boards of equalization of Cincinnati now under consideration, are illegal. These annual boards of equalization have two sets of duties to perform in reference to real estate which, while closely allied, are, in fact, independent of each other; one is to correct any gross irregularities that may exist in the appraisement value of the several lots and tracts of land within their jurisdiction, as these valuations appear on the duplicate of the preceding year; and this they are required to do, whether new structures have been erected or old ones destroyed during the preceding year or not; their power to equalize gross irregularities of this class is neither enlarged nor diminished by the erection of, or the total failure to erect, new structures; the other is to equalize the value of new structures erected, and old ones destroyed, as the same have been returned by the several assessors for the year, in order that the net increase for the year of the value of real property may be added to the duplicate of the preceding year.

A careful examination of all the statutes relating to these duties of'boards of equalization, whether they are annual or decennial, city or county boards, will disclose the care with which the legislature prohibited a reduction of-the aggregate valuation that might come before such boards for equalization, either from the decennial land appraisers or from the duplicate of the preceding year. And the care and precision whereby the legislature limited and guarded against the abuse of the power of reduction, when it came to grant it to the state board of equalization by section. 2818, Revised Statutes, gives emphasis to this legislative purpose. The legislature, evidently, thoroughly comprehended the 'danger of clothing these local boards with such power — it knew the pressure that would be brought to bear upon them, and the temptations and. importunities they would be required to withstand. No specific reference to them is necessary, for they will at once suggest themselves to every one having the slightest knowledge of public affairs.

The proviso in section 2804 — the section relating to the powers and duties of these annual boards of equalization, prescribes “ That said board shall not reduce the value of the real property of the county below the aggregate value on the duplicate of the preceding year, to which shall be added the value of all new entries and.new structures over the value of those destroyed, as returned by the several township assessors for the current year.”

When this proviso is construed in connection with the legislative purpose before referred to, it becomes entirely certain that the annual boards of equalization have no power, while engaged in equalizing the valuation of the real estate on the duplicate of the preceding year, to reduce its aggregate valuation; and it is equally certain that when they have equalized the value of new structures, etc., the net valuation thereof, after allowing for structures destroyed, is to be added to the duplicate of the preceding year, and therefore cannot be made a predicate to reduce the valuation of tracts or lots of land, that, in the opinion of the board, then stood upon the duplicate at a valuation grossly too high.

It was admitted in the circuit court that the annual boards of equalization of Cincinnati, for the years mentioned in the petition, “ added to the values of new entries and new structures over the amount thereof, as fixed by the several ward assessors or the county auditor and so presented to said boards, and over and above the amounts by the said boards deducted from the values of new entries and new structures, and of buildings destroyed, as presented to them by the ward assessors and the county auditor, including the deductions made by tbe boards themselves where a building had been destroyed, but its destruction had not been returned by the ward assessors, an amount far greater than the deductions made from, exceeded the additions made to, the valuation of other pieces of real estate where such boards were of the opinion that such deductions or additions should be made on account of gross inequality in the valuation thereof.”

For the purposes of this decision, this admission may be treated as a part of the petition, and its effect considered as if it was an averment thereof.

The boards of equalization, in doing what it is admitted they did do, in no wise enlarged their powers to reduce values as they found them on the old duplicate; and it is immaterial to the matter in hand whether they had or had not legal, authority to do so. If they had authority to add to the valuations which the several ward assessors had fixed upon new structures returned by them, and also power to add to the valuation fixed by the county auditor on new structures added by him, the powers concerning that part of their duties, which the law enjoins on them with a view to ascertain the increase of the property of the community for the current year, that it might be added to the duplicate of the preceding year, were pursuant to the policy before alluded to, of securing for taxation, year by year, the net increase resulting from the growth and development of the county. If' they did not have such authority, then, there is no valid ground to claim that, because they, without warrant of law, added a valuation to one man’s property, they thereby acquired power to take from another’s a portion of the valuation theretofore legally resting upon it.

It<is urged in argument that the petition is too indefinite to entitle the plaintiff to a writ of mandamus, that it does not pray for the performance of any particular act, that it leaves to the discretion of the county auditor the manner in which the reductions are to be restored, and that the court could not tell whether the county auditor had complied with its order or not if the writ was issued.

It is no doubt true that there are difficulties in the way of a complete restoration of these duplicates, but they are not insurmountable. When these illegal deductions were made, the acts were without warrant of law and had no more binding force than if they had been done by any other body of men; it at once became, and has since remained, the duty of the county auditor to ignore them to the extent that they were without the jurisdiction of the boards. To correct the error committed when he transferred to the duplicate the deductions illegally made by the annual boards of equalization, was a duty enjoined on him by virtue of his office, and this duty has continued to rest upon him ever since. The record of the proceedings are or should be in his office and should provide the means of performing this duty by disclosing the proceedings of the board in making the illegal deductions. And we must assume that when directed by the court to perform this duty he will honestly and faithfully endeavor to discharge it to the best of his ability. That the performance of these duties may present difficulties requiring the exercise of a sound judgment, coupled with an extensive knowledge of the law is no doubt true, but constitutes no valid ground for an omission to perform them. He is provided by law with a legal adviser; but whether so provided or not, it is a startling proposition that a public officer may decline to perform the duties of his office, because this discharge involves the solution of complicated questions of any kind. Whatever difficulties lie in his way, he must bring to the discharge of his duties such capacity and experience as he may possess. This court is not called upon at this time, in advance of a trial in the circuit court, to suggest the manner in which these duties ought to be performed. This, to the extent that an issue is made requiring it, will, no doubt, be done by the circuit court in its judgment awarding the writ.

The only question now properly before this court is as to the sufficiency of the petition as modified by the admission of record, to which allusion has before been made, to entitle the plaintiff to some relief, and we confine the decision to that question. The petition,-as so modified, being sufficient to entitle the plaintiff to some relief, it was error to dismiss the action.

The judgment of the-circuit court is therefore reversed, and the cause remanded to the circuit court for further proceedings.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    The State ex rel. v. O’Brien et al.

      Municipal Corporations — When quo warranto may be maintained against a person who assumes the exercise of the office of member of council— Acts of the General Assembly — When bill becomes a law.

    1. While, under the provisions of section 1679 of the Revised Statutes, the council of a municipal corporation is the exclusive judge of the election of its own members, quo warranto may be maintained against a person who assumes the exercise of the office of member of the council from a ward which has no legal existence, or under an election held without lawful authority.
    2. Under the constitution of this state, and the joint rules and practice of the general assembly, a bill, which provides that it shall be in force from and after its passage, becomes a law and takes effect when it has received the requisite number of votes of the members elected to each house, and is signed by the presiding officer of each house.
    (Decided June 27, 1890.)
    Quo Warranto.
    The object of this proceeding is to have determined whether the defendants are entitled to exercise the powers and functions of members of the council of the city of Springfield. The petition shows that since the 15th of April, 1890, the defendants have assumed to sit and act as members of the council of that city, and to exercise the powers and perform the duties of said office, to the exclusion of certain members, who, it is claimed, were elected to, and. constitute such council. The right of the defendants to the offices, which it is alleged they have usurped, depends upon the validity of certain proceedings for re-districting the city into wards, purporting to establish the wards from which the defendants claim they were, at the April, electiod of 1890, duly elected members of the council. And if there was any authority for those proceedings, it must be found, it is conceded, in an act of the general assembly, entitled an act “ to provide for redistricting cities of the third grade of the second class,” 87 Ohio L. 123, which is as follows:
    “ Sec. 1. Be it enacted by the General Assembly of the State of Ohio, That in every city of the third grade of the second class, it shall be the duty of the mayor of such city, within ten days after the passage of this' act, on petition of at least one hundred electors of said city, to appoint three electors who shall constitute a commission to re-district such city.
    “ Sec. 2. Said commission when so appointed shall take an oath faithfully to discharge their duties with impartiality, and shall immediately re-district said city into wards, bounded by streets, alleys, avenues, public grounds, canals, water courses, corporation lines, centre lines of platted streets, or railroads, and composed of adjacent and compact territory, containing as nearly an equal number of inhabitants as in the opinion of said commission may be practicable and consecutively numbered.
    “ Sec. 3. The commission shall give notice of the proposed changes, by publication, for five days in two daily newspapers of general circulation in the corporation, and during said five days it shall be the duty of the commission to sit at least a part of each day in some public place, where said commission may hear and consider any complaints, objections or petitions that may be made against the proposed division of territory; when objections are made by one or more citizens, against any particular division or divisions proposed, it shall be the duty of the commission to carefully examine said objections, and if it appears, that for good reasons the objections be well founded, the commission may make such alterations as may be deemed proper, and at the end of said five days, the commission shall cause copies of the plats of the wards, as finally adopted, to be made, with a description of the boundaries of the same, and shall deposit one copy certified by them ■ with the mayor, and another with the city clerk who shall immediately record the same in the record book of general ordinances and the concurrence of two members of said commission shall be sufficient for the making of any order, or the validity of any act of the commission.
    “ Sec. 4. No election of members of council or boards of education or ward officers shall be held until the next ensuing annual election for corporation officers, nor shall the term of office of any member of council or board of education be abridged, and if two or more members of council or board of education, who hold over, reside in the same ward after re-districting, the commission shall designate what wards are to be represented by them respectively until the expiration of their terms and notify the mayor, council and board of education thereof, and new members shall be elected only in the wards left unrepresented after such re-districting.
    “ Sec. 5. The division made by said commission shall have the same force and effect as if made by ordinance of council, and said ward shall not again be changed until after the third regular meeting of council after the annual municipal election next after such re-districting.
    “ See. 6. This act shall be in force from and after its passage.” — “ Passed April 1, 1890.”
    The petition alleges, that the bill enacted into the foregoing statute, after having received the votes of a majority of the members of the house of representatives, where it originated, was amended in the senate, and as so amended received the votes of a majority of the members of that body, and was then returned to the house, which refused to concur in the senate amendments; whereupon, on the 26th day of March, 1890, the senate receded from its amendments, and the bill was enrolled, and on the 81st day of March, 1890, was signed by the speaker of the house, and then sent to the senate, where, on the 1st day of April, 1890, it was signed by the presiding officer of the senate, who, as required by the joint rules of the two houses of the general assembly, affixed thereto the date of its passage, as follows : “ Passed April 1st, 1890; ” and the bill thereupon, it is alleged, became a law under the above title, and the same was deposited in the office of the secretary of state.

      The petition further alleges that prior to the 26th clay of March, 1890, the mayor of Springfield “ arranged with William S. Thomas, John Kinnane and P. E. Montanus, that he would, if said bill became a law, appoint them a commission to re-district said city; and thereupon said Thomas, Kinnane and Montanus, prior to said 26th day of March, 1890, and before they were, or could be sworn or qualified to act as such commission, agreed to re-district said city into nine wards, and also agreed upon the manner in which they would so re-district said city into said nine wards, and, also before said day, made out a description of the boundaries of the wards according to their said scheme of re-districting said city into wards, and before four o’clock of said 26th day of March, 1890, they caused notice of the scheme of re-districting said city into wards, so agreed upon, to be inserted in a newspaper printed and of general circulation in said city, called, ‘ The Springfield Daily Democrat,’ and a few minutes after the receipt of a message from Columbus, about half-past three o’clock in the afternoon of said day, to the effect that said bill had received the concurrence and sanction of both branches of the general assembly, said newspaper, containing said notice, was circulated in said city.”
    The notice states, that the persons appointed such commission had re-districted the city into nine wards, giving the boundaries of each, and that “during the five days commencing on the 27th of March, 1890, and fending the 1st of April, 1890, (not including Sunday,) the commission would sit at the mayor’s office each day, between the hours of two and three' o’clock P. M., to hear and consider any complaints, objections or petitions against such division of territory into wards.” And on the same day this notice was published, the mayor published his proclamation to the electors of the city, notifying them to assemble on the 7th day of April, 1890, between the hours of six o’clock A. M. and six o’clock p. M., at the places fixed by the board of elections, for the purpose of electing, among other officers, one member of council for each of the nine wards into which the city had been so re-districted.

      It is further alleged in the petition, that the mayor, according to his previous understanding with Thomas, Kinnane ;and Montanus, on the 26th day of March, 1890, appointed ■them such re-districting commission, and they, on the 5th day of April, 1890, filed with the city clerk, a description of the boundaries, and maps, of the nine wards into which they had re-districted the city as before stated; and on the same day they addressed a communication to the city council, designating certain hold-over members to represent certain of the wards so constituted, until the expiration of their terms of office.
    The board of elections, it is averred, prior to the 5th day of April, 1890, “ and in anticipation and contemplation of the re-districting of said city into said nine wards proposed by said commission, unlawfully divided said nine proposed wards into precincts, and published a list of polling places, and appointed judges and clerks of election for such polling places and furnished them with lists of registered electors in the same, and did not provide any other polling places, or judges, or clerks of election for said municipal election, so that the electors of said city were unable to hold a legal election for councilmen in said city on the first Monday in April, 1890.”
    The defendants claim to have been elected, at the election held on the 7th of April, 1890, members of the council for the wards as constituted, by the re-districting proceedings. Which proceedings, the petition charges, were without any lawful authority.
    The case has been argued upon a general demurrer to the petition.

      J. A. McMahon and Hagen £ Hagen, in support of demurrer.

      B. K. Watson, Attorney General, and R. A. Harrison and Si A. Bowman, contra.

   Williams, J.

The first question raised in the argument, is one of jurisdiction; it being, whether, since by section 1679 of the Revised Statutes, the council of a municipal corporation is made the judge of the election, returns and qualifications of its own members, the action of quo warranto, can, in any case, be employed to try the right of a person to a seat in that body. That section provides that “ The council, and when of two branches, each branch, shall be the judge of the election, returns, and qualifications of its own members.” The defendants contend, that the jurisdiction with which the municipal council, and its branches, is thus invested, is exclusive; and, that in the exercise of that jurisdiction, every question appertaining to the right to the office, may be determined ; and consequently, the court is without jurisdiction in this case, to inquire into the defendants’ title to the offices they claim to hold. The argument in support of this position is, that, as the language of the statute, by which the power is conferred on the councils of municipal corporations to judge of the election, returns and qualifications of their members, is identical with that of the constitution, which makes each house of the general assembly, the judge of the election, returns and qualifications of its members, the same rules of interpretation should be applied to the language in each case, and the powers conferred on the council, should be held to be equally comprehensive with those conferred on either branch of the general assembly.

It is well settled, that under constitutional provisions of the kind referred to, the decision of the legislative body upon the right of a member to a seat therein, is in general final and conclusive; and such decision may embrace the determination of every question affecting either the election, returns, or qualification of the member, whether there be a contest or not; for the power to judge of the election returns or qualification of the member, does not depend upon a contest instituted against him for the purpose of trying his title to the office. A more liberal rule of interpretation prevails, however, in favor of the powers of the legislature, than is applied with respect to those of councils of municipal corporations. The former is a co-ordinate branch of the state government, deriving its powers from the constitution, and. is supreme in its department, subject only to tbe limitations found in tbe constitution; while the latter have only such powers as have been within such limitations expressly conferred on them by the former, or are clearly implied from those so expressly granted.

The statute under consideration, no doubt, was enacted in obedience to that requirement of the constitution which provides, that “ The general assembly shall, determine, by law, before what authority, and in what manner, the trial of contested elections shall be conducted.” Section 21, article II. In the light of this constitutional provision, section 1679 must be regarded as a designation by law, of the authority, before which, the trial of contested elections of members of the council of municipal corporations shall be conducted; and it confers upon such councils, complete power to hear and determine all questions arising upon a contest of the election of members thereof. The settled doctrine in this state is, that where provision is made by statute for contesting elections, the statutory proceeding is the exclusive remedy. State v. Marlow, 15 Ohio St. 114; Ingerson v. Berry, 14 Ohio St. 315. And in further recognition of this doctrine, in a recent decision, the court held, that the jurisdiction conferred by section 1679 upon the council of a municipal corporation to determine the election of its own members, is exclusive. State v. Berry, 47 Ohio St. 232. If, then, this action may be treated as a contest of the election of the defendants, as members of the council, and involves no inquiry which may not properly be determined upon such contest, in the decision of the question now under discussion, the defendants must prevail.

But is the action, in any proper sense, one of that character ? “ Elections cannot be held and offices acquired at the mere option of the office seeker. In order, therefore, to the holding of a valid election, authority so to hold it must be found conferred by the people, either directly through the constitution, which they have themselves ordained, or indirectly, through the enactments of their legal representatives, the legislature. Without such authority, no election, except it be one held with the unanimous consent of all persons entitled to participate, can be of any legal importance.” Meacbam on Public Offices and Officers, section 170. In other words, there can be no election without some lawful authority for holding it. The phrases, “ contested election,” and “ contest of an election,” necessarily imply that an election under some lawful authority, has been held, to choose an incumbent of an existing office, to which some one, might, at such election properly be chosen, and that the person, whose right to office is the subject of the contest, claims to have been duly elected thereat. And, as said by Scott, J., in Ingerson v. Berry, 14 Ohio St. 324, the contest of an election, “ is the specific remedy provided by statute for the correction of all errors, frauds and mistakes which may occur in the process of ascertaining and declaring the true expression of the public will.” But where there is no such office as that which a claimant assumes to fill, or there is no authority for his election thereto, the attempt by him to exercise its functions, is a mere usurpation. In such case, a proceeding to contest his election, would be inapplicable, and inappropriate; and, if the public exigencies demand it, he may, we think, be ousted by quo warranto. The distinction drawn by the Supreme Court of Pennsjdvania, in the decision of two reported cases arising under constitutional and statutory provisions somewhat analogous to ours, is in accord with this conclusion.

The charter act of the city of Philadelphia conferred upon its council the same power and mode of trying contested elections of its members as. is provided for the contest of elections of members of the senate and house of representatives. In The Commonwealth v. Leech, 44 Pa. St. 332, which was a proceeding in quo warranto, to oust from the office a member of the council of that city, the court held that “ where there are two claimants under the same election for the same office, which only one of them can have, it constitutes a case of contested election, which is to be tried in the mode specifically provided for in such cases, and not by the ordinary form of judicial process, the statutory remedy for this statutory right, supplying the place of the common law remedy. The mode of trying contested elections of councilmen of Philadelphia, is specially provided for in the city charter of 1854; and in such contests the courts have no jurisdiction.” In a succeeding case, the Commonwealth v. Meeser, 44 Pa. St. 341, which was a proceeding to oust from the office of councilman in the city of Philadelphia, a person claiming to be such officer, on the ground that the ward which he claimed to represent already had one member, and was not entitled to two, that' court, in holding that quo warranto was the proper remedy, uses the following language: “The supreme court cannot inquire whether the election was regularly conducted; for that duty belongs to the branch of the council in which the seat is claimed; but they can decide the question whether there was an office or vacancy to be filled.” In the opinion of the court, Lowree, C. J., said: “ This ward has already one member, and is not entitled to another unless it had four thousand taxable inhabitants. Here, then, are the regular steps to a valid election: an official list of taxables of the preceding year, showing four thousand taxable inhabitants; a proclamation of the sheriff of a vacancy to be filled, which proclamation is expressly required, and an actual election in pursuance thereof, conducted by the proper officers, and certified as the law directs. If any of these steps are wanting, then the election was irregular, and the defendant’s title to the office is at least doubtful. But let us be careful here. This court has no authority £o judge whether the election was regularly conducted or not, for that duty is assigned by law to the councils. Our duty must be confined to the decision of the question whether there was an office or vacancy to be filled.”

In the case of Commonwealth v. Fowler, 10 Mass. 290, it appeared that on the 25th of February, 1812, the legislature of Massachusetts passed an act, which, by its provision, was to take effect from and after the first day of August then next, and which created the county of Hampden out of certain towns in the county of Hampshire. On the 20th of May, 1812, the governor appointed the respondent Fowler to the office of judge of the probate of wills, in the county of Hampden. An information in quo warranto was filed to oust him, on the ground that at the time of the appointment the law was not in operation, and the appointment was on that account void. It was contended that the court was without jurisdiction by that proceeding to inquire into the respondent’s right to the office, because the governor had the exclusive right of appointing and so must have the exclusive right of determining when a vacancy existed in the office, the filling of which belonged to that branch of the government. It was also contended that the appointment was valid. But the court held otherwise on both questions, deciding that it had jurisdiction, and that the appointment, by the governor, of the respondent to the office, before the act went into effect was void. And see Att’y Gen’l v. Holihan, 29 Mich. 116; People v. Riordan, 41 N. W. Rep. 482; People v. Gartland, 42 N. W. Rep. 687; Commonwealth v. Allen, Huhn and Shane, 70 Pa. St. 465.

The distinction between the trial of a contested election, which is a contest between two or more persons for the same office, or against one claiming the office, and implies that there was an election held under some lawful authority for choosing an incumbent of an office then in existence, which some one might lawfully fill, and an inquiry into the legal existence of the office, or the authority to hold an election or make an appointment to fill it, is clear and substantial, and was practically enforced in the cases of State v. Marlow, 15 Ohio St. 114, and State v. Taylor, Ibid. 137.

While, therefore, the power conferred by section 1679 of the Revised Statutes on the councils of municipal corporations, to determine the election of their own members, is exclusive, we are of opinion, quo warranto may be maintained against a person who assumes the exercise of the office of member of the council from a ward which has no legal existence, or under an election held without authority of law.

If the act referred to in the petition, did not go into effect, as a law, until after the 26th day of March, 1890, there was no authority for the appointment, that day made, by the mayor, of the commission to re-district the city of Springfield, and the appointment, and the acts of the commission, were equally inoperative and invalid; and it follows, that at the April election of 1890, there were no such wards as those in which the defendants claim to have been elected, and there could then be no election of members of council therein.

This brings us to the consideration of the other question in the case, which is, when did the act take effect ?

It is shown by the petition, that the bill, which finally became the act in question,was introduced in the house of representatives, and after having received, on its passage, the votes of a majority of the members elected to that body, was sent to the senate, where it was amended, and as amended, received the votes of a majority of the members elected to the senate, and was then returned to the house for its concurrence in the amendments. The house refused to concur; and, on the 26th day of. March, 1890, the senate receded from its amendments, and sent its message to the house, to that effect, on the 27th of March, 1890; and on the 81st day of March, the bill, having been enrolled and reported to the house by the committee on enrollment, was signed by the speaker and sent to the senate, where, on the 1st day of April, it was signed by the presiding officer of the senate, who, as required by the joint rules of both houses, affixed thereto the date of the passage of the bill as follows: “ Passed April 1st, 1890.” And thereupon, the petition alleges, the. bill became a law under the title it now bears, and as such was deposited in the office of the secretary of state.

Section 17 of article II. of the constitution requires, that “ The presiding officer of each house shall sign, publicly in the presence of the house over which he presides, while the same is in session, and capable of transacting business, all bills and joint resolutions passed by the general assembly.” To carry out this constitutional provision, the general assembly adopted the following joint rule:

“ Each bill and joint resolution shall be first signed by the speaker of the house of representatives, and then by the president of the senate, who shall fix the date thereto, and be by him delivered to the clerk of the senate, who shall immediately deposit the same in the office of the secretary of state, and take his receipt therefor, which receipt shall be fifed with the papers of the senate.” — Joint Rule 17.

By section 128 of the Revised Statutes, the secretary of state is required to have charge of and safely keep all laws passed by the general assembly, and deposited in his office.

Evidently, the framers of the constitution, and the general assembly, deemed it important that there should be some rule, by which it might be ascertained, with certainty and convenience, when a bill became a law. The evidence of the proceedings of each house of the general assembly, is contained in the journal it is required to keep; and that would be a rule of great inconvenience, which should require an examination of those journals in every instance, in order to determine when a bill finally received the requisite vote of both houses. And then, the result might not always be certain; for it would hardly do to hold that a bill becomes a law the instant it receives the votes of the majority of the members of each house. The vote may thereafter be re-considered, and the measure then defeated, and no one would claim, we apprehend, that during the interval between these events, it would be a law. In the practical execution of the provision of the constitution, and the joint rule, already quoted, the president of the senate, when he signs the bill in the presence of that body, affixes the day of the month, and the year, preceded by the word “passed,”, and the act thus authenticated, with that date of its passage appended, is deposited in the office of the secretary of state, and is so published in the volumes of the laws of that session. This appears to have been the long and uniform practice, and the laws are administered by the courts, with reference to the dates of their passage thus shown. And in subsequent legislation, when the time of the passage of a previous act is referred to, it is uniformly referred to, as passed at the date affixed by the president of the senate and published in the laws. This may be regarded as a legislative interpretation of the meaning of the term “passage,” when used with reference to the time when an act shall take effect; and hence, when it is provided in a statute that it shall take effect from and after its passage, the time of the passage of the act as affixed by the president of the senate, when he signs the same, is intended.

In the recent case of State v. Kiesewetter, 45 Ohio St. 254, it was held that a bill which is not authenticated as required by section 17 of article II. of the constitution, does not become a law; that this provision of the constitution is mandatory, not directory only, and was intended, not as a mere guide to the action of the general assembly, but for the benefit of the people in their examination in ascertaining what is or is not the law.

For the reasons there stated, and those here given, we are of opinion, the act in question did not go into effect until the 1st day of April, 1890 ; and consequently, the action of the mayor of Springfield in appointing the commission to re-district that city into wards, and the action of the commission so appointed, were alike unauthorized and void. The persons appointed on the so called commission were not officers de faeto, for there was then no such office. There can be no officer de faeto, unless there be an office to fill. And as is said by a learned author, while there may be officers defacto, an office defacto cannot exist under a constitutional government. Meacham on Public Offices, section 825. Neither, are the defendants, officers de facto. The action of the so-called commission being wholly ineffectual to establish the wards which the defendants claim they were elected to represent, there was of course no such office as member of the council from the supposed wards ; and, as there was no office, there could be no defacto officer. In this essential feature, the status of the defendants, as well as of the persons appointed on the re-districting commission, lacks analogy to that of the contesting senators, whose action, after they were admitted as members of that body, was under consideration in the case of The State ex rel. Herron v. Smith, 44 Ohio St. 349, referred to in the argument of counsel. The senatorial districts were lawfully established; and, at the time and in the manner appointed by law, an election had been held, at which senators were duly chosen. The contestants, who claimed to have been elected from their respective districts, were admitted to seats in, and thereafter acted as members of the senate. There can be no doubt, that while so acting, they were, as was held in that case, at least senators defacto.

The demurrer is overruled. And, as it is impossible that the law could have been so executed as to effect a redistricting of the city into wards between the time the act took effect, and the election held on the 7th day of April last, no reason is perceived why final judgment of ouster should not now be pronounced against defendants, and

Judgment will be entered accordingly.


text:
    Village of Van Wert v. Brown.

      Constitutional law — Local option — Construction of the Dow Law — Practice.
    On March 6, 1889, the council of the village of Van Wert passed a prohibitory ordinance by virtue of the 11th section of the act of May 14, 1886, entitled “ an act providing against the evils resulting from the traffic in intoxicating liquors,” (83 Ohio Laws, 157,) which ordinance went into effect March 22,1889. June 6th, following, a complaint was made before the mayor, against one B., charging a violation of the ordinance by keeping a place within the village where intoxicating liquors were unlawfully sold from May 1st to June 11th. B. filed a motion to be discharged, and, afterwards, a motion in arrest of judgment, on the ground, among others, that so much of said 11th section as purports to vest in municipal corporations power to pass prohibitory ordinances was unconstitutional, the same not providing a way by which, and a fund from which, a dealer who should be compelled to discontinue the business could first have returned to him the ratable proportion for the unexpired portion of the year of the tax paid. The motions were overruled, and, on a plea of guilty, sentence of fifty dollars fine was imposed. On error to the court of common pleas the judgment was affirmed. On error to the circuit court the judgment of both courts was reversed, and the defendant ordered discharged.

      Held: 1. That under section 7356 Revised Statutes, as amended February 7, 1885, (2 S. & B. Revised Statutes, 2123,) this court has jurisdiction to review the judgment of the circuit court. 2. That it was not error to overrule said motions, for the reasons: (a). It not appearing that the deféndant had been assessed or paid the tax provided for by thé first section of said act, as amended March 26, 1888, he was not affected by the provisions for refunding to those who had paid, and, as to him, it was immaterial whether or not, as to those who had paid, said provisions are or not incapable of execution, and whether the prohibitory feature of the law, as to the latter class, is unconstitutional or not. (6). Section eleven, being construed with section three of the act, the two, taken together, afford a way by which a dealer in intoxicating liquors, who has discontinued the business, either voluntarily or by compulsion, may receive a refunding order for the proportion of the tax to which he may be entitled. 3. Said section eleven is not impossible of execution merely because it does not provide out of what fund such return of a ratable proportion of the tax paid shall be made.
    (Decided June 27, 1890.)
   Error to the Circuit Court of Van Wert county.


author: Speak, J.

text:
    State v. Rouch.
    The act of March 3, 1888, entitled “ an act to further provide against the evils resulting from the traffic in intoxicating liquors, by local option in any township of the state of Ohio,” (85 Ohio Laws, 55,) and the act of May 14, 1886, entitled “ an act providing against the evils resulting ' from the traffic in intoxicating liquors,” (83 Ohio Laws, 157,) relate to the same general subject, and, where necessary to a clear understanding of either, are to be construed together. So construed, a mode is provided in section three of the last named act, for the return to a dealer who has paid the tax and has discontinued business by reason of the traffic having been prohibited in the township, under the act of March 3, 1888, of the ratable proportion of the tax paid to which he is entitled under section four of that act. Hence said section four is not incapable of execution.
    (Decided June 27, 1890.)
    Bill of exceptions by tbe prosecuting attorney to tbe decision of tbe Court of Common Pleas of Wayne county.
    Tbe facts in tbe case of Village of Van Wert v. Brown, are' sufficiently stated in tbe syllabus.
    In tbe case of The State v. B,oueh, tbe facts are as follows: On the 8th day of March, 1890, tbe grand jury of the county of Wayne presented to tbe Court of Common Pleas of that county, an indictment against tbe defendant in error, charging him with a violation, on tbe 5th day of March, 1890, of the act of March 3, 1888, known as the Township Local Option act. To this indictment a general demurrer was interposed. The demurrer was sustained. To this the prosecuting attorney excepted, and duly took a bill of exceptions. On leave, the bill is filed in this court “ for its decision upon the points presented.”

      A. L. Sweet and J. L. Price, with whom also was W. H. West, for the Village of Van Wert.

      W. J. Beers, with whom was B. G. Hewitt, for Martin Brown.

      A. B. Metz, prosecuting attorney, for the state.

      John McSweeney, Jr., contra.

   Speak, J.

In the case of Van Wert v. Brown, a preliminary question is made by the defendant in error as to the jurisdiction of this court to entertain the petition in error on the part of the village. The learned counsel objects to the jurisdiction of this court because, as he insists, the prosecution before the mayor was a criminal case, and such case can be reviewed in this court, after a judgment of a reversal of the conviction only by and upon a bill of exceptions filed by the prosecuting attorney, and in such case, for the purpose only of settling the law for other cases. In support of this claim he cites thei following portion of section 7356, Revised Statutes (2 S. & B. Revised Statutes, 2123): “ In any criminal case, including a conviction for a violation of an ordinance of a municipal corporation, the judgment or final order of a court or officer inferior to the common pleas court may be reviewed in the common pleas court; a judgment or final order of any court or officer inferior to the circuit court may be reviewed in the circuit court; and a judgment or final order of the circuit court or the common'pleas court in cases of conviction of a felony or a misdemeanor, and the judgment of the circuit court in any other case involving the constitutionality or construction of a statute, may be reviewed by the supreme court.” Counsel insists that it is only in case of a conviction for a violation of an ordinance that this court- may review; that as long as the conviction is affirmed the accused may carry his case to a higher court, but, so soon as that judgment of conviction is reversed, then it is a case of acquittal, and the statute does not authorize such cases to be carried up.

We think the point not well taken. It is true that, in two instances, Barney v. Cleveland, 84 Ohio St. 599, and Village of Shelby v. Boenau, 40 Ohio St. 253, this court has, inadvertently as we think, spoken of such offenses as violations of criminal law. But they are not, strictly speaking, crimes, nor are the proceedings, criminal proceedings; they are quasi criminal only. The offender does not offend against the dignity of the state; his offense is only against the municipal corporation whose ordinance he has violated. He is prosecuted, not by the state’s prosecuting attorney, but by the solicitor of the village or city, or by a city prosecutor in the police court. The municipal corporation is liable for costs in case of acquittal; the state is not. In practice, the distinction has been recognized at least as far back as Markle v. Town Council of Akron, 14 Ohio 587. In that case the plaintiff in error had been convicted of a violation of a town ordinance prohibiting, under a penalty, the vending and retailing by persons not licensed tavern-keepers or physicians, of ardent spirits. It was held that the ordinance was valid, and that, for a violation, the corporation might declare in debt. Wood, C. J., in the opinion, uses this language: “It is true, for offenses strictly criminal or infamous, punishment can only be inflicted through the medium of an indictment or presentment of the grand jury. . . . There are, however, many offenses, made so by statute, which are but quasi criminal, and where the legislature may direct the mode of redress, untrammelled by this constitutional provision .... Long acquiescence in these enactments goes far to show the construction which has been placed by all on the constitution, and that there may be many offenses, though decidedly immoral and mischievous in their tendencies, that are not crimes, but at most only quasi criminal. Of such, jurisdiction may be given to a justice of the peace, or the mayor of an incorporated town.”

That this has been the understanding of our law-makers, the general current of our legislation attests. The legal machinery for the trial and punishment of violations of ordinances has been provided in the municipal, and not in the criminal, code. Provision for reviewing the judgments of the police courts, and of mayors, in such cases, by the court of common pleas, are found in acts regulating municipal corporations, and not elsewhere, until the enactment of the codified laws known as the Revised Statutes, which went into effect January 1, 1880, when such review was, for purposes of brevity, provided for by section 7356. And in this section the distinction is recognized. The language is: “In any criminal case, including a conviction for a violation of an ordinance of a municipal corporation,” etc. Had such violation been regarded by the legislature as a crime, the same would have been sufficiently covered by the words of the first clause, and that which follows would be superfluous.

Section 7356 does not prevent this court from reviewing the case in question. The language itself leads to the opposite conclusion. It will be noted that provision for jurisdiction of this court in section 7356, as amended February 7, 1885, is in these words: “ and a judgment or final order of the circuit court or the common pleas court in cases of conviction of a felony or misdemeanor, and the judgment of the circuit court in any other ease involving the constitutionality or construction of a statute, may be reviewed by the Supreme Court.” Offenses against the state are divided into felonies and misdemeanors — the former being such as are punishable by death or imprisonment in the penitentiary, and all others, misdemeanors. But to be either, the offense must be against the state. A violation of an ordinance not being an offense against the state, does not come within either class. It follows that in the language above quoted, where the words used are “ cases of conviction of a felony or misdemeanor,” violations of ordinances are necessarily excluded. And, as the first clause of the section permits cases of conviction for violation of ordinances to be reviewed in the common pleas, and then, by the next clause, in the circuit court, and the following clause gives this court jurisdiction to review all judgments of the circuit court in any case involving the constitutionality or construction of a statute, which, as we have found, need not be a case of felony or misdemeanor, it follows clearly that the section does confer upon this court jurisdiction to review the judgment of the circuit court in a case where the charge is a violation of an ordinance, without reference to the question whether it is a case of conviction or not, only so that it involves the constitutionality or construction of a statute. This conclusion is strengthened by the consideration that if the other construction be accepted, the constitutionality and meaning of statutes upon which ordinances are founded, would be finally disposed of by the circuit court where that court should hold such statutes invalid, or give to them such construction as to destroy their efficacy. It has not heretofore been, and we think, is not now, the policy of the state to thus limit the jurisdiction of this court.

The constitutionality of the Dow law, as to its general features, was maintained in Adler v. Whitbeck, 44 Ohio St. 589; and in Anderson v. Brewster, same volume, 576, and in each case it was held to be a tax law, and not a license law. In Gordon v. The State, 46 Ohio St. 607, the Township Local Option act was attacked as unconstitutional on the ground that the act is of a general nature, and has not uniform operation throughout the state; also, that it is a delegation of powers to the people, and that it is impossible of execution because it does not 'provide adequate means for determining whether the signatures on the petition to the township trustees for an election are genuine, and, whether the signers constitute one fourth of the qualified electors of the township, and that there was no provision for the filing and preservation of the record. In all these respects the act was held by the court not to be obnoxious to the objection urged, and to be valid; so that, we are notin this inquiry, concerned with any of these questions.

The principal question sought to be raised by the motions in the case of Van Wert v. Brown, was, whether or not the eleventh section of the act know as the Dow law, (Sec. 8092, 18, 2 S. & B. Revised Statutes, 2730,) is impossible of execu fcion, and hence void, because it does not provide how and out of what fund a dealer in liquors within a municipal corporation, who is required to discontinue business because of a prohibitory ordinance, shall be paid his ratable proportion of the tax.for the unexpired portion of the year; and, in the case of the State v. Rouch, the same question, as applied to section four of the act known as the Township Local Option act (2 S. & B. Revised Statutes, 2732), was sought to be raised by the demurrer to the indictment.

The portion of section eleven of the Dow law which is in review is as follows: “ Any municipal corporation shall have full power to regulate, restrain and prohibit ale, beer and porter houses, and other places where intoxicating liquors are sold at retail for any purpose or in any quantity other than as provided for in section eight of this act * * * But if any municipal corporation shall prohibit ale, beer and porter houses, or other places where intoxicating liquors are sold within the limits of such corporation, a ratable proportion of the tax paid by the proprietors thereof for the unexpired portion of the year shall be returned to such proprietors.”

Section four of the township local option act reads as follows : “In any township where the majority of the votes cast at such election shall be ‘ against the sale,’ and a dealer in intoxicating liquors who has paid the special tax shall, by reason of said vote, discontinue his business, a ratable proportion of said tax paid by such dealer in intoxicating liquors for the unexpired portion of the year shall be returned to such dealer.” And in each act penalties are affixed to the selling of liquor contrary to the inhibition prescribed.

There may be two classes of dealers affected by the passage of the prohibitory ordinance, or by prohibitory township action, viz.: those who, having been engaged in the business prior to the passage of the ordinance, or to the taking effect of the vote “ against the sale ” by the electors of the township, have paid the tax authorized by the act, and those who may engage in it subsequent thereto. It is apparent that a dealer, in order to be affected by the refunding features of either act, must have not only been engaged in the business, but he must have paid the tax. If he does not come within this clause it is no matter of concern to him whether or not proper provision'has been made for the benefit of other dealers who do not come within it. The whole act would not be held invalid simply because it could not legally.be applied to all the classes of persons apparently coming within its terms. It is well settled that where, by the terms of a statute, several classes of persons are apparently included within its operation, and, as to some of them, its enforcement would render the act unconstitutional, and as to others not, the act will not, for that reason, be declared’unconstitutional, but it will be presumed that the legislative intent was to apply the statute to the latter class only. This principle is illustrated in Hirn v. The State, 1 Ohio St. 15. The defendant had been indicted for violation of the act of March 12, 1851, which made it an offence to sell spirituous liquors to be drank in the place where sold. The act repealed all laws licensing the sale of spirituous liquors. Him pleaded specially that before the enactment of the law he had obtained from the court of common pleas, under the act of June 1, 1831, a license to keep tavern, with privilege of retailing liquor, and that the sale complained of was at his tavern while his license was in full force. This court held that the act of March, 1851, repealed the act of June, 1831, so far as it conferred authority to grant licenses to sell liquor in future, but did not revoke outstanding licenses, and so sustained the plea. It is illustrated, too, by the cases of State v. Frame, and Benner v. Bauder, 39 Ohio St. 399. The act under review was the statute known as the Scott law, the second section of which provided that the assessments for taxes upon the business of trafficking in intoxicating liquors “shall attach and operate as a lien upon the real property on and in which the business is conducted as of the fourth Monday of April, each year.” It was objected that the law was invalid because, by the second section, the obligation of contracts of lease entered into before its passage, and still subsisting, was impaired. The court held the law to be constitutional and valid, but held also that the second section did not operate where the business was conducted by a tenant for an unexpired term under a lease executed before the passage of the statute. It is illustrated, also, by the case of Anderson v. Brewster, supra. The court held that under the second section “ a valid lien is created upon the real property, when the tenant holds under a lease, written or parol, made after the passage of the statute,” leaving it to be plainly implied that had the lease been executed prior to the passage of the act the lien would not have attached; in other words, that the lien feature of the Dow law did not apply to premises so leased.

From this principle it would follow that if a dealer who was in the business at the time the prohibitory restriction took effect, and who had paid his tax, and the time covered had not expired, should be prosecuted, and a defence that the law, as applied to him was incapable of execution and therefore void, should be sustained, neither the statute nor the ordinance would be necessarily held invalid, but their operation simply restricted to the class to whom their provisions might legally apply. But the records before us do not show such a case. .It nowhere appears that either Brown or Rouch had ever paid the tax. For this reason, if for no other, the motions in the one case were properly overruled, and, for like reason the demurrer to the indictment in the other case was improperly sustained.

But are either of the sections so indefinite as to be impossible of execution as respects a dealer who had paid the tax and the time for which he had paid had not expired at the time the prohibitory restrictions took effect ?

In giving construction to a statute all its provisions must be considered together. We must endeavor to get at the legislative intent by a consideration of all that has been said in the law, and not content ourselves with partial views, by selecting isolated passages, and holding them alone up to criticism. What is the whole scheme of the law? What object did the legislature intend to accomplish ? Clearly it is to provide against the evils resulting from the sale of intoxicating liquors by taxing the traffic, and, in a measure, prohibiting it. The amount of tax is fixed at a certain sum per year, beginning and ending at given dates. The taxing in this manner implied that some persons might want to begin the business after the beginning of the taxing year, and some dealers, who had paid the tax, might want to discontinue the business before the close of the year, and the authority to prohibit carried with it the idea that some . dealers who had paid might be compelled to discontinue before the time for which they had paid, had expired. These exigencies would call for apportioning the amount of tax to the actual time the dealer would be engaged in the business, and for a refunding of a - portion of the tax actually paid. Hence, we find the following provision, being section three of the Dow law:

“ That when any such business shall be commenced in any year after the fourth Monday of May, said assessment shall be proportionate in amount to tlje remainder of the assessment year, except that it shall be in no case less than twenty-five dollars, and the same shall attach and operate as a lien, as aforesaid, at the date of, and be paid within ten days after such commencement; and whenever any person, corporation or co-partnership, engaged in such business, who has been assessed as aforesaid, and who has paid or is charged upon the tax duplicate with the full amount of said assessment, discontinues such business, the county auditor, upon being satisfied of that fact, shall issue to such person, corporation or co-partnership a refunding order for a proportionate amount of said assessment, except that it shall be in no case less than fifty dollars.”

It will be noted that this section provides the machinerjr for refunding. It is to be done by the county auditor, by means of a refunding order, issued, however, only when satisfied that the person, etc., has discontinued the business. The officer designated, and the mode, is a general provision; the persons who may have, under the terms of this section, the refunding order, are, those only who voluntarily quit the business, while, by section eleven, dealers who have paid the tax, and are compelled to quit by reason of a prohibitory ordinance may receive a ratable proportion of the tax paid for the unexpired portion of the year. To this amount no limit is fixed; it may be nine tenths, or one tenth, or any portion. It is true that this section does not direct in what way, or by whom, the ratable proportion shall be returned. But the dealer is of the same class, so far as the payment of the tax is concerned, as those for whom the refunder is provided in section three. Each paid his money by virtue of the same .provision of the same law, and by reason of conducting the same business. Each paid to the same officer, to wit: the county treasurer. The disbursement by that officer of the money received from one was precisely in the same manner as that received from the other. The policy of the law is to refund where the business has been discontinued. The only officer authorized by law to draw the order by which the proportionate amount can be obtained is the one named in section three, to wit: the auditor. What more natural, then, than to conclude, that the intent of this law is that all dealers entitled to have any ratable portion of the tax refunded may go to the auditor, who, upon being satisfied that the dealer has discontinued the business, will draw the proper refunding order ?

The same meaning applies to section four of the Township Local Option act. The provision is similar, as to a return of a ratable portion of the tax paid, to that of section eleven of the Dow law. The two acts are in pari materia. Their titles and their subject matter show that they relate to the same subject. One spirit and policy pervade both statutes, and the two were intended to be consistent and harmonious. The refunder provided for,- is intended to be carried out by one and the same officer, and in one and the same way.

But it is insisted that under section eleven the right to have a prohibitory ordinance is coupled with a condition precedent, viz.: to refund, and the right to prohibit cannot be exercised while the right to refund is delayed for the collection of money wherewith to refund. It is urged that the money paid by dealers in any municipality is distributed to the poor fund of the county, to the municipality, and to the general revenue of the state, and that it becomes the duty of the county treasurer, upon his settlement with the county auditor on the 15th of February, and the 10th of August of each year, to at once disburse and pay over those funds, so that, during much of the year, there could not be any fund out of which the refunding order could be paid, and the prohibitory ordinance would prevent any fund created by the law from again accumulating in the treasury; and that it would be unlawful for the auditor to draw an order except upon funds created by assessments under this law. So that, there is no fund out of which the dealer who discontinues could be reimbursed, and hence no refunding order could issue, and the prohibitory feature of the Dow law is impossible of execution, and therefore void.

In support of the claim that it would be unlawful for the auditor to draw an order except upon the precise fund created by the assessments, section 1038, Revised Statutes, is cited, and it is insisted that the terms of that section control the matter of refunding under the Dow law because both statutes treat of refunding assessments. To maintain this proposition it must appear that the term assessment, “applies to the same subject in each act.” Is this the fact ? In section 1038, it is provided that the county auditor shall, from time to time, correct all • errors which he discovers in the tax list and duplicate, either in the name of the person charged with taxes or assessments, the description of lands or other property, etc. And when the auditor is satisfied after having delivered the duplicate to the county treasurer for collection, that any tax or assessment thereon, or any part thereof, has been erroneously charged, he may give the person charged therewith a certificate to that effect to be presented to said treasurer, who shall deduct the amount from said tax or assessments; and if, at any time, the auditor discovers that any erroneous taxes or assessments have been charged and collected in previous years, he shall call the attention of the commissioners to it, and if they find it to be the fact, they shall order him to draw his warrant on the treasurer in favor of the person so having paid, and the treasurer “shall pay the same out of any surplus or unexpended funds in the county treasury.” Then, at the next annual settlement with the auditor of state, the county auditor shall deduct from the amount of taxes appearing due the state, the amount of such refunded taxes which had before been paid into the state treasury. The refunding may go back five years, but not farther. Then follows, the provision relied upon, to wit: “ but no assessment shall be so returned except from the fund or funds created in whole, or in part, by such erroneous assessment.”

It will be noted that this section deals with taxes and with assessments as distinct and different charges upon property. The one is a burden imposed ordinarily for purposes of revenue only; the other is a burden imposed for purposes of local improvement, as ditching, sewering, paving of streets, and the like. Having this in mind, the true signification of the limitation as to the fund from which return may be made, becomes apparent. No limit whatever is placed upon the funds from which taxes erroneously levied may be refunded. The limitation is confined to the return of assessments errone ously imposed and collected. The assessment being for local benefit, it is deemed proper to confine the return of any moneys erroneously collected for that purpose to the fund created by the assessment, but taxes, having been imposed for general revenue purposes, any unexpended funds in the treasury may be drawn upon to refund taxes erroneously levied and collected.

It is true that the burden imposed by the Dow law upon the traffic in intoxicating liquors, is, in some of the sections, termed an “ assessment,” but the word is there used as synonymous with tax, and is widely different, in meaning, from the same term as found in section 1038. Indeed, in section eleven, the word “ tax ” is used. “ This is an assessment in the form and nature of a tax,” says Minshall, J., in Adler v. Whitbeck, supra, and it is so treated throughout in that case, and in all the decisions of this court relating to that law.

From this it is clear that there is no force in the point that section 1038 requires that the refund of taxes provided for by the Dow law must be confined to the exact fund created by tbe collection of the tax. The plan of refunding taxes, indicated by the section, may possibly give some light to auditors as to the general policy of the state in regard to the subject, but the section cannot have any controlling or probative force in determining the question we have here. For another reason the section is not applicable. Section 1088, by its terms, applies, and applies only, to taxes erroneously assessed and paid. Taxes under the Dow law are not taxes erroneously assessed and paid.

The contention that the right of the municipal corporation to pass a prohibitory ordinance depends upon the first making provision for refunding to dealers who discontinue, is wholly untenable. If the law were a license law, and not a tax law, there might be force in the proposition. The tenor of the language of the law itself forbids the implication that provision for refunder is a condition precedent. . The first thing to be done is the passage of the ordinance. No step looking to a refund of tax can possibly precede that. Next, the dealer must stop the business. Not until he has done that, and has satisfied the auditor that the business has been actually discontinued, is he entitled to a refunding order, and then its payment may not be immediate. Nor is this unreasonable. The dealer has no vested right in the business. Any who paid since the passage of the act did so with full knowledge that, by the action of a municipality, or a township, he might be compelled to discontinue the business, and that then, and not before, he is entitled to a refunder under the terms of the law. In other words, such dealer becomes a creditor to the amount of his ratable proportion. It seems to be assumed that this is a hardship. Compared with citizens in other lines of business, or with those who are compelled to give their services to the state, it is not so.. Familiar instances readily come to mind. The farmer, or other owner of live stock, is assessed upon it as of the day preceding the second Monday of April. It goes upon the tax duplicate as of that date, and taxes are imposed upon it. The stock may be taken off by disease before the duplicate even is made up, and yet no abatement is made in the tax. There is no possible mode of correction before payment, or of refunder after. Nor can the owner refuse to pay the tax although the lost property may have been relied upon for his only means of carrying on business. Again, jurors, and witnesses in criminal cases, cannot refuse to obey the law which requires them to attend and serve, or testify, on the ground that the only provision for paying their fees, is, that they shall be paid out of the county treasury first being certified to tiie county auditor by the clerk of the court. Such persons must give their services, and incur expense, for quite moderate compensation, and then take the chance of the treasury having funds from which fees can be paid on presentation of the auditor’s warrant. It has been no uncommon occurrence, in some of the counties of the state, for warrants in favor of witnesses to find an empty treasury, and remain dishonored for weeks, and sometimes months. Many other instances might be cited.

We think there need be no embarrassment or difficulty about the character of the order to be drawn by the auditor. The statute provides that that officer, upon being satisfied that the dealer has discontinued business, shall issue to such dealer a refunding order. It does not direct what particular fund or funds the order shall be drawn upon. In such case it would he lawful to draw on the general fund. Such was the holding in Zimmerman v. Canfield, 42 Ohio St. 469. An order so drawn would at least he a valid order. Whether it has been the custom of auditors to draw these orders without designating any fund, or, on the general fund, or on the poor fund, or proportionately upon several funds, or, where drawn without designating any, for the treasurer to pay partly from several funds, we are not concerned to inquire. Equally unimportant is it to the present question what method, if any, the auditors adopt in making good a fund thus drawn upon, when overdrawn, if they are made good, or, in adjusting their accounts with other officers. We are not called upon, in a case like the present, to criticise the system followed, to direct what system should be adopted, or with the question whether or not the holder of the order' procures immediate payment of it. It is enough to know, that provision has been made for the return of the tax for the unexpired portion of the year, and if it results in the holder of the auditor’s order having to wait for his money, it is but what he must be held to have contemplated, and cannot, in any wise, interfere with the operation of the prohibitory features of the law. That the phraseology'of these acts, in the particulars named, might have been made more definite and certain, may be conceded. But it cannot be presumed that the legislature intended to fail to provide a reasonable mode by which the refunder contemplated, .may be made, and, as held in Cochran v. Loring, 17 Ohio 409, “ though a law is imperfect in its details it is not void unless it is so imperfect as to render it impossible to execute.” As to these laws we see no difficulty in their execution, upon the terms of the acts themselves. Nor is it pretended that there has developed any practical difficulty in any county in the state, on the part of either dealer or officer, in understanding this feature of the law. On the contrary, the operation of the refunding features, has, in practice, worked easily, and without embarrassment. No single instance has been recalled, by counsel or court, where any dealer who has discontinued the business has failed to receive a prompt return of the ratable proportion, and to now sustain the objections urged, would be to set aside solemn acts of the legislature upon a barren ideality.

Other objections raised by the defendant in error in the case of Van Wert v. Brown, were, we think, correctly determined by the circuit court, and need not be discussed here. But that court erred in reversing the judgment of the court of common pleas, and the mayor, on the grounds herein stated, and for that

The judgment of the circuit court is reversed, and that of the lower courts affirmed.

In the case of State v. Rouch, the court of common pleas erred in sustaining the demurrer to the indictment, and

The exceptions of the prosecuting attorney are sustained.