text:
    Jane J. Craig, Administratrix of John C. Craig, v. Charles Fox and Another.
    On a motion to confirm a sale, the court has discretionary power; and though • the letter of the statute may have been complied with in giving notice of sale, yet if the court is satisfied the notice was published in a paper not of general circulation in the count}7, it may refuse to confirm the sale.
    A decree in chancery rendered in the Supreme Court may be remanded to the common pleas for execution.
    A sale of land under a decree may be made by the sheriff or Ms deputy.
    An execution or an order of sale once begun, is not abated by the death of the plaintiff, nor by the marriage of administratrix, in whose favor it issued.
    This is a ease reserved in the county of Hamilton.
    It is an appeal from the decision of the court of common *pleas, confirming a sale of land made under a decree in chancery.
    On November 27, 1840, the bill of foreclosure upon which the decree was based was filed against the defendants, reciting a mortgage of the date of December 1, 1832, made by Fox and Miller to John 0. Craig, the intestate, upon a lot of ground in Front street, Cincinnati, 125 feet front by 120 feet deep, with the buildings. The mortgage was given to secure two notes of-§5,000 each and ten notes of §250 each. The bill claimed that the two notes for §5,000 each were unpaid, and also that the interest was in arrear since May 1, 1840.

      At tho April term, 1842, of the Hamilton Supreme Court, the court found that there had been a proper execution and delivery of tho mortgage, and that there was due thereon $11,157, which was decreed to be paid within sixty days. In case of default for payment, John C. Avery was, by the decree, appointed special master to sell the premises and make the money. The decree also provided that ho should sell five stores, occupying ninety-five feet of the ground, before he sold the residue, which was property the defendants had previously sold to Kugler and to Myers. Tho master was ordered to report to the Hamilton common pleas all these proceedings; and the case was remanded to that court for execution, and the sale was required to be made as on judgments at law.
    On August 19, 1842, an order of sale issued from the Hamilton common pleas, directed to John C. Avery, sheriff and special master.
    For October 4, 1842, the sale was advertised ; but the premises were returned “not sold, for want of bidders.”
    On November 19, 1842, the court reissued the former order to the same officer.
    On December 8, 1842, there was an alias order issued to John C. Avery, special master.
    And for February 22, 1843, the sale was again advertised; *but the premises were returned i!not sold, for want of bidders.”
    On March 15, 1843, the old appraisement was set aside, and a new one ordered; and John C. Avery’s appointment as special master was revoked, and the sheriff for the time being was ordered to sell.
    On March 28, 1843, a new order for sale was issued to John H. Gerard, tho sheriff.
    On May —, 1843, the sheriff, Gerard, reports his sale. Ho says that he had advertised the sale for thirty days in tho Cincinnati Enquirer, and sold the premises at the door of the courthouse, as follows:
    Lot No. 3, to John C. Craig......................................... $3,990
    Lot No. 4, to Jane J. Riddle (late Jane J. Craig)............ 3,170
    Lot No. 5, to “ “ “ “ “ ............ 3,240
    $10,400

      The printer’s affidavit states that the advertisement was inserted for thirty days prior to the sale, May 16, 1843, in the Cincinnati Enquirer. It appeared in the daily of the 15th April, and also in the weekly of the 19lh and 26th April, and the 3d and 10th of May. The daily Enquirer circulates almost entirely in the city; the weekly principally in the country adjacent, and they are read by different sets of subscriber’s. The attached advertisement states neither the time nor the place of the sale.
    After the rendition of the decree, and after an alias order of sale had been issued, the complainant was married to Mr. Biddle.
    It was objected to the confirmation of sale :
    1. That the Supreme Court can not lawfully remand a decree in chancery to the common pleas for execution.
    2. That the sale was not legally advertised.
    3. That an order of sale directed to a master can not be executed by his deputy.
    4. That the sale was illegal, because the sole complainant, *being administratrix, married after the decree, but before sale, whereby the suit abated previous to the sale.
    Henry Stanbery, attorney-general, for complainant.
    Wm. M. Corry, for defendants.
   Birchard, C. J.

The questions arising in this case are presented on a motion to confirm the sale by the sheriff.

The first objection is that the notice is insufficient.

The affidavit exhibited to prove publication of notice returned by the sheriff, contains a copy of the notice which does not state the time or place of sale. This is defective. It is wholly insufficient. It looks as though a part had been omitted or cut off in clipping it out of the newspaper in which it Was published, and it is probable the defect might be supplied if the cause should be continued and sent back to the county.

The next objection to the notice is, that the publication was not made according to law. The statute requires that lands takon in execution shall not be sold until the officer cause public notice of the time and place of sale to be given, for at least thirty days before the day of sale, by advertisement in some newspaper printed in the county (Swan’s Stat. 474), and it is urged that these words roquire consecutive insertions of the notice during the period of thirty days.

This construction of the statute has been practiced upon very generally in many parts of the state; and wore it possible that private rights could be injuriously affected by not adopting and sustaining it, I might hesitate in expressing an opinion that consecutive insertions of the notice are not required. No such right can, however, bo affected. I look then to the statute in order to gather the meaning and intention of the legislature. Its words will be answered by one publication, inserted in a newspaper thirty days before the day of sale, and will not require an insertion in each paper that may bo issued between the date of the first insertion *and the sale. Insertions daily or weekly, when intended to be provided for, are always indicated in definite language, as in the advertisement for a tax sale, where this is the form of expression, “ shall cause notice to be advertised four weeks successively.”

There is, in my opinion, and in the opinion of another member of the court, no objection to the notice of sale on this ground, which would induce us to refuse a confirmation of the salo, 13 Ohio, 120, or at least no such objection as would induce us to reverse a judgment of confirmation by the court of common pleas, were the question before us upon writ of error.

To a certain extent, however, we all hold that the court of common pleas and this court, on an appeal from an order of confirmation, may exorcise a sound legal discretion, and refuse a confirmation where the object of the law in requiring publication of notice has not boon attained. As if, for instance, the letter of the statute has been literally complied with, but by a publication inserted in a newspaper printed in the county where the lands lie, of so limited a circulation as to confine the notiqo to a few persons only, or to a limited section of the county. A majority of the court (myself differing on this point only) are of opinion that this notice was published in a paper that did not circulate throughout the county of Hamilton, and which was confined to the city of Cincinnati. And that as the other publications made in the triweekly and weekly papers, and circulating in the county generally, and not in the city, were not given thirty days before the sale, the whole, taken together, do not show that the object of a notice has been attained bythe publication as proven to have been made, and therefore refuse to confirm the sale. The difference between us is upon a matter of fact and legal discretion, rather than upon a question of law. Although not fully concurring in these views, the point is of a nature that does not justify a dissent on my part.

A question of greater difficulty is presented by the objection *that “ this court can not lawfully remand a decree in chaneery to the court of common pleas for execution.”

Section 106 of the act to regulate the practice of the judicial courts, prohibits the Supreme Court from issuing execution in causes that are removed before, them bg writ of error or on appeal, and ’makes it the duty of the court to send a special mandate to the court of common pleas to award execution upon their judgment. Swan’s Stat. 680. This statute purports to relate only to proceedings at law. Section 108 provides for an appeal to the Supremo Court of any judgment or decree rendered in the court of common pleas in which said court bad original jurisdiction. In looking through the entire practice act, the only word that seems to authorize the remanding of decrees in chancery for execution is the word decree, in section 108.

But the act directing the mode of proceedings in chancery (Swan’s Stat. 713, sec. 55), provides for appeals in chancery, and (sec. 51, p. 712) makes ample provision for the execution of decrees in chancery, by the courts of chancery, without any ¡provision for remanding such decrees to the court of common pleas for execution. Were the question an open one, we should scarco hesitate, on a review of these statutes, as to the construction, but the practice long since obtained of remanding to the courts of common pleas for execution, as well the decrees in chancery as the judgments and decretal orders in suits at law, and on certiorari.

Repeated circuit decisions of this court have been made in support of this practice, and many titles are hold in virtue of those decisions. In a matter at all doubtful, and on a subject of this nature, after a lapse of several years since the practice began in this court, and after it has been sustained by numerous circuit decisions, it can not be possible that the construction of the act requires to bo changed. Indeed, it can not be altered without producing indefinite mischief, and shaking public confidence in the stability of the judicial tribunals of the state.

In a case before the Supreme Court of the United States,

^where the judges were unanimously of opinion that a statute of Pennsylvania had been erroneously construed, they yielded their opinions to that of the courts of the state, on the ground that many titles depended upon the erroneous construction, and that “ infinite mischief would ensue should they observe a different rule from that which had been long established.” McKean v. De Lancy’s Lessee, 5 Cranch, 33.

This is a question where like consideration should forbid a departure from the established practice of those who have preceded us.

We owe as much respect to the past judicial action of the courts of this state as would be paid by the highest court of the Union.

Another objection is, that the sale was made on an irregular order, and was made by a deputy. Assuming (as by the point last determined we have a right to do) that the decree was rightfully remanded to the court of common pleas for execution, and there can be no doubt but that the court had power to change for good cause the master appointed in the original decree, to make sale of the premises and to substitute another. We do not apprehend the question is before us, so that the action of that court in making the change and substitution can be inquired into. It was a matter of sound discretion to be exercised by them, and the facts upon which they acted in removing the special master do not appear in the record.

It is sufficient that he was removed, and that the court ordered and decreed the sale to bo made by the sheriff of the county for the time being. This was authorized by section 8 of the amendatory act (Swan’s Stat. 719), which required the order of sale to be directed to the sheriff or other proper officer of the county. And had not a different rule been held for many years in constructing this section 8, under which many titles have been acquired, a majority of the court might entertain the opinion that the true intention of the legislature was, that all sales of land on orders issuing *out of chancery should be made by the sheriff of the county or in his absence by. the coroner. But on this point we yield an opinion, and sustain the former construction as the settled law.

By another provision of the statute the deputy sheriff is authorized to execute a writ directed to his principal. “The deputy may do and perform any and all the duties appertaining to his principal.” Stat. 285, sec. 5.

The remaining inquiry is, could the last or pluries order of sale legally issue after the intermarriage of Jane J. Craig, the administratrix, with Biddle ? It is contended that whatever might have been the rule at common law, this question is settled by the statute, which (Swan’s Stat. 344, sec. 28) provides that:

“When an unmarried woman, who is executrix or administratrix, either alone or jointly with another person, shall marry, her husband shall not be executor or administrator in her right; but the marriage shall operate as an extinguishment of her authority as executrix or administratrix; and the other executor or administrator, if there is any, may proceed in discharging the trust as if she were dead; and if there is no other executor or administrator, administration may be granted of the estate not already administered, and such administrator may proceed to discharge the trust, in like manner, as if the executrix or administratrix toere dead.”

Also, that an order of sale can not issue on a decree after the death of the plaintiff, or after that has happened which the law compels us to treat in this respect as its equivalent. *

Our first examination led us to the conclusion, that upon this ground also the sale should be set aside. A more careful consideration of the subject has satisfied us that our first impression, as applied to the facts before us, was incorrect.. After the rendition of the decree, and before the marriage took place, an order of sale and an alias order had issued, and was returned, “property unsold for want of bidders,” the appraisal had been set aside, and a new appraisal ordered. By the act directing the mode of proceeding in chancery, above referred to, this process is required to be treated in its ^execution “in like manner as an execution issued at law. Swan’s Stat. 712, 719, secs. 48, 72. An execution at law once begun is not abated by death, but may be proceeded in as an entire thing, until the object is effected by a sale of the property. This we conceive to be a well-settled rule, and fatal to this objection to the confirmation.

Sale set aside and remanded for further proceedings.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    Lessee of Joshua H. Perry v. Charles S. Clarkson and others.
    Where proceedings were instituted by an administrator for the sale of land, and an order of sale granted under the act of 1795, and the sale was made ■ after the repe&l of that act by the act of 1805, such sale conferred no title upon the purchaser.
    This is an action of ejectment reserved in Hamilton county.
    The case comes before the court upon an agreed statement of facts. The plaintiff’s chaiu of title is as follows:
    1. Title and possession in Israel Ludlow.
    2. Deed of the administrators of Israel Ludlow to Joseph Tan Horne, signed and sealed in presence of two witnesses; dated March 25, 1807; acknowledged June 23, 1807, before John Ma-hard, J. P.; and recorded October 24, 1809. This deed purports to .convey the north half of the south third of the east half of section 19, township 3, fractional range 2, containing 53J acres.
    It purports to be made under the authority of the following record:
    “Administrators of Israel Ludlow, deceased, exhibit an account current of said estate. John Ludlow and James Findlay, two of the administrators sworn, and pray order to sell real estate to satisfy the debts, etc. Court grants the prayer of the administrators, excepting and reserving the farm and improved lands at Cincinnati, together with 'the ^houses and lots in Cincinnati ;” and recites a sale made in 1806.
    3. Deed of Joseph Tan Horne to Joel Williams, dated July 25, 1811.
    4. Deed of Joel Williams and Phebe, his wife, to Thomas Graham, dated September 1, 1813.
    5. Deed of Thomas Graham to George A. and Jacob Madeira, dated September 16, 1818.
    6. Deed of George A. and Jacob Madeira to James Nixon, dated June 12, 1820.
    7. Deed of James Dixon to John Adams, dated February 18, 1824.
    8. Deed of John Adams to Joshua H. Perry and Frederick W. Athearn, dated July 29, 1828.
    9. Deed of an undivided moiety from Athearn to said Perry.

      The defendants claim title under the heirs of Israel Ludlow, and are in possession. Their title is admitted to be good, unless the title of the heirs was divested by the sale made by the administrators as aforesaid ; by which sale, if valid, Tan Horne acquired title.
    If, upon the foregoing state of facts, the plaintiff’s lessee is entitled to a verdict, judgment is tobe entered accordingly; otherwise judgment is to be entered for the defendants.
    Stoker & G-wynne, for plaintiff.
    Chase & Ball, for defendants.
   Read, J.

The legal propositions arising upon the agreed state-

ment of facts in this case, have been settled by former decisions of this court.

The main proposition is this:

Will a sale, had on an order upon application of an administrator, under the act of 1795, and made after its repeal by the act of 1805, vest the purchaser with title?

*This depends upon the fact whether the administrator had power to sell at the time of sale.

If the power exist, it must result from the order, or have been, preserved by the saving clause of the repealing act of 1805. Under the ordinance of 1787, an administrator had no control over real estate until the adoption of the law of 1795. Lessee of Ludlow’s Heirs v. Johnson, 3 Ohio, 554.

Both these questions have been directly decided, and were the turning points in the case of Ludlow’s Lessee v. Wade, 5 Ohio, 596.

The court there decided, that the administrator’s power to sell, depended both upon the act of 1795 and the order of the court; and hence, that a repeal of the act destroyed the power, and that a sale made after such repeal on the order was void and conferred no title.

It was furthor decided that proceedings had on the part of an administrator, to obtain an order of sale under the act of 1795, was not a “ suit or prosecution” within the saving proviso of the act of 1805, which authorized “suits and prosecutions now ponding to bo carried on to final judgment and execution,” agreeably to the provisions of the laws repealed.

This decision was reaffirmed in the ease of Davis’ Lessee v. Livingston, 6 Ohio, 225, and also in tho case of Paine’s Lessee v. Skinner, 8 Ohio, 162.

We are not disposed to disturb these decisions. They wore made after much mature deliberation; and although it is matter of regret that administrators and purchasers should have acted on a misapprehension of the law, and that mischiefs have resulted from such mistakes, yet wo conceive that tho court have put a right construction upon the statutes, and that it was not in their judicial power to remedy the evil.

We are now satisfied that the decisions then made are law.

In the case of the Bank of Hamilton v. Dudley’s Lessee, 2 Pet., whore this very matter came under consideration in tho Supreme Court of the United States, Chief Justice ^Marshall says, “ if tho law which authorized the court to make the order be repealed, the power to sell can never come into existence.” He said this is a point upon which we can not doubt.

Judgment for defendant.


author: Hitchcock, J.

text:
    John C. Culbertson v. The City of Cincinnati.
    A court of equity may restrain, by injunction, the collection of a special tax levied by the city council without authority of law.
    The city council can not assess a special tax upon the owners of city property benefited by opening a street, unless they have provided by ordinance that the person thus assessed shall have, if he desire it, a review, with the privilege of naming two of tho persons composing the board of review.
    This is a bill in chancery, reserved in tho county of Hamilton.
    This bill was filed in the superior court of Cincinnati, on July 12, 1842. The prayer is for an injunction to restrain the collection of a special tax, levied by the city council, upon two stores and part of a lot fronting thirty-three feet on Lower Market street, near the corner of Sycamore and said Lower Market street, and for general relief.
    The substantial facts of the case, as they appear from the bill, answer, exhibits, and testimon y, are as follows :
    Tho city council, on February 5, 1840, passed an ordinance, reciting that in their opinion the public good and convenience of the citizens required that Lower Market street, between Broadway and Sycamore streets, should be widened, and ordaining that the same be widened as therein specially defined, and dedicated •for the public use, and controlled as other streets, etc., in the city, and the damages be ^assessed as by the ordinance in such case made and provided. On February 12, 1840, the council appointed Jacob Strader, Robert Reilly, and George W. Neff, to assess said damages—application having probably been made therefor. On April 9, 1840, they report their assessment, awarding damages as follows, to wit:
    To Arthur Martin, $100; to Joseph Simmons, $200 ; and benefits as follows, to wit: To property of James H. Caldwell, $250; to property of Thomas Jordan, $25; to property of-Mclntire, $25; which, on April 15, 1840, was unanimously adopted by tho council.
    On April 27, 1840, Arthur Martin petitioned .for a review. On April 29, 1840, the city council appointed Archibald Irwin and Anthony Harkness to review and assess the damages sustained in widening said street, in conjunction with Samuel Wiggins and John Shalley, selected by Morris and Joseph Simonds ; and Peter McNicoll and Josiah Lawrence, selected by Arthur Martin.
    On May 14, 1840, Samuel J. Browne asked a review of the said assessment, and naming on his part Arthur Harvio and William Greene as appraisers, which was by the council accepted and referred to the appraisers appointed on the part of the city. On May 21, 1840, the appraisers appointed, on the application of Martin, and M. and J. Simmonds, made their report, which was referred back to them to assess benefits, as well as damages, and by whom the same should be paid. No further report was ever made.
    On August 5,1840, the appraisers, on Browne’s application, reported they could not agree, which was referred back with instructions to appoint a fifth man. On August 26, 1840, John Sullivan’s petition, though previously rejected, or laid on the table, was read and referred to the commissioners. On December 16, 1840, the subject *of opening said street was by the council referred to the law committee to report a plat of the gro'und, and action of the commissioners, and such other information as they deemed proper.
    On October 25, 1841, Nicholas Yolant petitioned council for re-dross, and tho appointment of other commissioners. On October 27, 1841, the council rescinded their previous appointments, and directed notice to be given to all interested to meet at the council chamber on November 22,1841, to appoint two appraisers to act with two to bo appointed by the city. On October 30, 1841, the notice whs published as directed. On November 24, 1841, N. Volant notified tho council that he attended the meeting called by them, and no one else attending, he had appointed Henry Brachman and Clement Ueitrich as reviewers on his part. The council appointed James Goodin and Edward D. Mansfield, on the part of the city, to act with the two appointed by Volant, in the review of said assessment. These gentlemen, in conjunction with S. Wyllys Pomeroy, appointed by them as the fifth man, after being sworn, made their report on December 22, 1841, assessing damages in the aggregate to the sum of $5,500 to Messrs. Browne, Martin, M. and J. Simmonds, W. G. Orr’s estate, and Volant; and benefits in the aggregate to $5,530.04—counterbalancing damages assessed and expenses charged, $30.04 over. These benefits are classified: to tho city of Cincinnati, on tho market-house, $1,844; to owners of property on north side of the market space, oast of the strip taken, and west of Broadway; to owners of property on the east side of Broadway, fronting the market space; to owners of property on the west side of Sycamore street, between Lower Market and Third street; to Murrio’s boil’s, about forty-four feet on east side of Sycamore street; and to the ownei’s of propex’ty on north side of Lower Market, west of Sycamore street, to the alley near the center of the block, including the complainant’s lot, lying eighteen feet west of Sycamore street, being about thirty-three feet front, assessed at $200. *This report was accepted, and ordered to be placed in tho hands of the proper collector for collection, and was so placed on December 27, 1841.
    On June 21, 1842, the mayor issued his warrant to the marshal of tho city, who advertised the complainant’s lot for sale to pay said assessment and expenses—to enjoin which, and quiet his title, he has filed his bill, and asks relief.
    V. Worthington and Charles Fox, for complainant.
    S. M. Hart, for defendant.
   Hitchcock, J.

The object of the complainant in this case, is to enjoin the collection of a special tax levied by tho city council oí Cincinnati, to defray the damages and expense of widening Lower Market street in said city. In the case of Burnet v. Corporation of Cincinnati, 3 Ohio, 73, it was held that equity may interpose by injunction to stay sale for similar taxes, and under the authority of that case we hold that the matter in controversy is properly before us for an adjudication.

The defense relied on in this case is, that the tax complained of was assessed by the city council, in accordance with city ordinances, enacted pursuant to its act of incorporation. If such be the fact, the complainant must fail. Whether it be so or not, is the real question to be decided.

By section 2 of the act of March 16, 1830, “further to amend the act to incorporate and establish the'city of Cincinnati, and for revising,” etc., power is given to the city council “ by ordinance to open, widen, straighten, or extend any street, lane, alloy, or market space, and to lay out, review, straighten, or extend, any corner or public landing, ‘whenever they may be of opinion that the public good of the citizens may require the same to be done, and to condemn and appropriate for that purpose any real estate necessary for such improvement, by making the owners compensation *for the value thereof, or for the damages they may sustain thereby,” etc. The council are further empowered to make any ordinance, not inconsistent with the act to ascertain damages and benefits which may accrue to the real estate “in the section or sections in the vicinity,” through which the improvement may be made, “or by going beyond the vicinity, when in their opinion it shall be just and equitable so to do, and to provide for the final adjustment of the same by the assessment and collection of a special tax from the real estate, bounding on and in the vicinity of such street,” etc. “ Provided that the city council shall provide, by ordinance, for the review of any assessment, or any part thereof, which may be made under the provisions of this section, by the appointment of two freeholders on the part of the city, two by the parties aggrieved, and the fiftji by the four thus appointed.”

It was thus made the duty of the council, to provide, by ordinance, for the erection of a tribunal, which should finally adjudicate between the city and any individual or individuals, who might feel themselves aggrieved by any valuation or assessment made by persons appointed by the city alone. And any individual or individuals aggrieved were to be secured in the right of selecting two of the persons who should compose this tribunal.

On May 29, 1839, soon after the aforesaid amendatory act, the city council passed an ordinance upon this subject in which tho manner in which streets, etc., might be laid out or widened, was prescribed; and that the damages and benefits should be ascertained and assessed by three freeholders of the city, “to bo appointed by the city council, if application bo made for that purpose within six months from the day of establishing the same,” etc.; and it is made tho “ further duty of such freeholders -to return their proceedings, without delay, to the office of the city clerk, who shall file the same forthwith.” Then follows a proviso in these words: “Provided, That if any party shall feel himself or themselves aggrieved by any such assessment or valuation, *and shall communicate the same to the city council in writing, within four weeks from the time of filing the same, together with the names of two freeholders of said city to act on his or her part and behalf, said city council shall appoint two freeholders on the part of the city for that purpose, and these four shall aj)point a fifth, whose duty it shall be, under oath or affirmation to be taken by them before any person duly authorized, to review the said assessment or valuation, or any part thereof, and to report their proceeding without delay, to the city council, who shall take such steps by resolution or otherwise, as may be proper to carry into effect the review so made.”

This proviso is in strict accordance with the amendatory act aforesaid, and if carried into effect in good faith, there could be no great danger but that substantial justice would be done. The citizen whose property was taken for the public use would be likely to receive a compensation as adequate, as if the damage had been assessed by tho jury of the country. He who felt that his property had been improperly assessed, might be as sure of obtaining justice before such a tribunal, as before any other that could be constituted.

On July 14, 1840, the city council passed another ordinance, amendatory to the one above referred to, in which it is provided that should a review of any assessment be demanded or required, notice should be given to all interested in the assessment, that there will be a review of the assessment, and calling upon them to meet at a certain time and place,'and choose two disinterested freeholders of the city as assessors on their part, and transmit the same forthwith in writing to the city council, whereupon it was made the duty of the city council to appoint two freeholders on the part of the city, and the four freeholders were to appoint a fifth, who, after being duly sworn, “ should proceed to investigate said premises and assessment, and shall make a new assessment and return the same to the city council, which assessment, when so made, shall be final in the premises.”

*These ordinances have been before the court at the present term, in the case of Combs v. Cincinnati, in which case it was decided that this ordinance of July, 1840, was notin accordance with the spirit of the act of incorporation, and was therefore inoperative.

In addition to the reasons assigned in that case why it should be held to be inoperative, it may, with propriety, be said that under this ordinance, a case might arise where the right of demanding a review would be utterly denied to a party aggrieved. This ordinance, although it professes to provide for a review, has an entirely different effect. The freeholders are bound to make a new assessment, not to correct or equalize the former. Although but one of a great number of persons is dissatisfied with the former assessment, yet if he requires it a new one must be made. And it might so happen that one who was not assessed at all before, would be brought in by this assessment, and as this is declared to be final, such person would be deprived of the privilege of review intended to be secured to him by the statute. Neither'by the statute, nor by the ordinance of May, 1839, could it have been intended that any new assessment should be made except as to such persons as feel themselves to be aggrieved. At least, wo understand such to bo the proper construction of those two enactments.

Now what are the facts of this ease? On February 5,1840, the council passed an ordinance for widening Lower Market street, and on the 12th day of the same month appointed three freeholders to estimato the damages and assess the benefits. Those freeholders, on th© 9th of April, reported that they had awarded to Arthur Martin damages to the amount of $100, and Joseph Simmonds $200, making the whole amount of damages $300.

To meet these damages they assessed benefits as follows: to James H. Caldwell, $250 ; to Thomas Jordan, $25; and to Mclntire, $25. A special tax was to be levied upon the property of these three individuals, in these respective ^amounts, and no other persons were assesed at all. This report was adopted and confirmed by the council, on April 15, 1840.

On the 27th of April, Arthur Martin petitioned for a review, and freeholders were appointed according to the act of incorporation, and according to the then existing ordinance. On the 14th of May, Samuel J. Browne, who had a reversionary interest in the property condemned, asked a review, and freeholders were appointed. On the 21st of May, the freeholders appointed on the application of Martin, made their report, which was referred back to them, to assess benefits as well as damages, and by whom the same should bo paid. No further report from these freeholders was ever made.

Why this report should have been referred back I do not understand. There does not appear to have been any complaint from those who were assessed for benefits, they were content. Martin and Simmonds had sustained damages, and if the reviewers supposed the damages were greater or loss than had been awarded to them, it was their duty so to report. By a fair construction of the act of incorporation, nothing further could have been required of them. Tho council seems to have gone upon the hypothesis, that the damages awarded and benefits assessed must at all times be equal. And that if tho damages awarded to a particular individual were increased by reviewers, benefits to meet this increase must be assessed either upon those who have been already assessed or upon some other person or property. I'do not, however, see any necessity or propriety of such proceeding. The original assessment must continue until changed in pursuance of a review asked by some person affected thereby. If eventually the damages awarded should exceed these benefits, the excess must bo made up from the city treasury. In truth tho city treasury must, in the first instance, bo liable for tho entire damages.

On July 14, 1840, the amendatory ordinance was adopted, which has already been decided to be in contravention *of the spirit of tho act of incorporation. By this ordinance the principle which seems to have operated with tho city council, of making damages and assessments equal each other, could without any difficulty have been carried out. For, by this ordinance, every new set of freeholders must of necessity make out an entire now valuation and assessment, regardless of what had been before done.

After the enactment of this ordinance, on October 27, 1841, almost two years after the ordinance for widening the street, the council rescinded all their previous appointments, gave notice to all interested to meet in the council chamber, at a particular time specified, ana select two freeholders as reviewers. But- one individual, however, attended, and made this selection. Two freeholders were appointed by the council, and these four selected a fifth man. They wore sworn and made a new valuation and assessment, and their report was accepted by the council. By this assessment the damages originally estimated at §300 are increased to §5,500, and the benefits assessed at §5,530.04, being a sum sufficient to satisfy all the estimated damages and accruing expenses. This valuation and assessment was made without regard to the valuation and assessment originally made. It is to affect different property and different persons, and still it is by tho ordinance declared to be final and conclusive.

By this last proceeding the lot of the complainant on Lower Market street is assessed at §200, and a special tax is levied to that amount. Neither this lot nor its owner were originally assessed by the three freeholders appointed by tho city council, nor had he requested any review. But by the reviewing freeholders this assessment is for the first time made, and the complainant is deprived of a right intended to be secured to every individual— the right of having a review by a board, a part of whose members have been selected by himself.

*Under these circumstances, it seems to the court that this special tax was levied without the authority of law, and against the spirit, intent, and meaning of the before-recited act of incorporation and the ordinance of May 29, 1839. It was levied, it is true, in accordance with the ordinance of July, 1840, but wo hold that ordinance to be unauthorized by the act of incorporation, and therefore void.

The complainant is entitled to the relief sought, and the collection of said special tax will be perpetually enjoined, in accordance with the prayer of the bill.


author: Birchard, O. J.

text:
    Valentine Heckman and others v. Conrad Mees and others.
    Article 4, chapter 6, of the constitution of the German Lutheran Reformed Ctt.gregation of St. Paul’s Church, Columbus, does not connect them unalterably and forever with the Evangelical Lutheran Synod of Ohio and adjacent states.
    The connection of the congregation with that synoefwas voluntary, and a dissolution of the connection was no violation of the condition upon which the church property was holden by the congregation.
    This is a bill in chancery, reserved in Franklin county.
    The bill is filed by a portion of the congregation known as the “ German Lutheran Reformed Congregation of St. Paul’s Church, Columbus,” against the pastor and other members of the congregation. This congregation had been' connected with the Evangelical Lutheran Synod of Ohio until a short time previous to the filing of the bill, when that connection was dissolved by the.vote of a .majority of the congregation. It is claimed by the complainants, that by the constitution of their church the connection with this synod was unalterable ; that the property of the church was held in trust to be used by the congregation while this connection continued; that by dissolving the connection the trust was diverted from its legitimate purpose and object, and that in ^equity it belonged to that portion of the congregation which still maintained its connection with the synod ; and the object of the bill is to obtain a decree giving the church property to that branch of the congregation.
    The defendants deny that there is anything in their constitution requiring a perpetual connection with the synod, and insist that they, being a majority of the congregation, are entitled to the control of the church property.
    Beside copies of the constitution and minutes of the proceedings of the church, a large mass of testimony is taken, so much of which as is necessary to an understanding of the case, is stated in the opinion of the court.
    Swayne & Bates, Swan & Andrews, for complainants.
    Henry Stanbery, attorney-general, and A. F. Perry, for defendants.
   Birchard, O. J.

This is a bill filed to enforce the execution of an alleged trust, and the existence of that trust being put in issue by the answer, our first duty is necessarily an investigation of the disputed matter of fact. We direct our attention, then, to the inquiry whether, by the unalterable articles of the constitution, the German United Lutheran and Reformed Congregation of St. Paul’s Church of Columbus is forever connected with the Evangelical Lutheran Synod of Ohio, etc. The answers of the respondents, embracing a large majority of the congregation, and including their pastor, deny this connection. By the proof of the witnesses whose depositions have been taken, it is very manifest that a largo majority of the present members of the church suppose and believe that no indissoluble connection with the synod was ever formed. On the other hand, some members.claim that from the first formation of the church, in 1817, down to the year 1846, it had a connection with the synod, which was of vital importance, and that a severance of that connection destroyed the original character of the congregation, which *could only hold its property [585 and exercise its functions in that connection. To settle this litigated matter the parties necessarily refer to their common constitution, which is the article of agreement under and by virtue of which the indissoluble connection is, if at all, to be established. Article 2, chapter 1, of the constitution reads thus: “ It is the duty the pastor to set his congregation an example by leading a true Christian life. But should he wander or quite fall into open vice (which God in his mercy forbid), then it shall be the duty of the church council several times to admonish him to amend his conduct ; but should he disregard such admonition, and continue to offend the church, then the council shall report the same to the synod to which the congregation has attached itself, and to which the pastor shall also belong.”

This is the only mention made of any synod throughout the constitution, except article 1, chapter 6, which prohibits strange preachers from preaching in the church without the production of satisfactory credentials from an Evangelical Lutheran Ministerium, a Reformed Synod, or a preacher of good standing in said church.

By article 6, of chapter 6, provision is made for altering any article of tho constitution by a vote of two-thirds of the voting members, except articles. 1, 2, 4, 5, and 6, of chapter 6, which are declared unalterable forever.

The difficulty in the congregation has arisen upon the construction of article 4. The original being in the German, it has been translated thus: “The same connections which have existed in this congregation from its first organization up to this time shall in every respect continue in all future time. In order, however, to prevent all misunderstanding and difficulties which, in the course of time, might arise between the Lutheran and Reformed members, it is hereby fixed and decided that no separation or division of the church property shall ever take place, nor shall ever a common property (or community of interest) be had or exercised therein by two or more independent congregations.” The word translated in, in the first line of this ^article 4, is by some translated with, and whether the connections in or within the congregation, were intended to be fixed and made permanent, or such connection as then existed with other bodies was intended, seems to be the great question upon which the case turns, and the whole cause of this suit. Different translators have placed different meaning upon the German word bei, which the respondents have translated in and the complainants with. But this fact stands forth prominently in this case, and meets us at the threshold. The congregation is exclusively German ; its members speak that language. It is their mother tongue. They employed it in framing their articles of association, as the medium of their thoughts and the evidence of their meaning and intention, and it would be strange, indeed, if three-fourths or five-sixths of the entire congregation should use words that bound them irrevocably and forever to a synod, without the least intention of so doing. They swear, that if the connection was unalterably fixed with the synod, the thing is contrary to their intention, and what they never would have consented to knowingly. Again, the only articles in which the synod is referred to, are articles which are subject to be altered at any time by a two-third vote of all the voting members. They may change those articles in accordance with the provisions of the constitution, and without any violation of their social compact.

Upon the meaning of the words of article 4, the congregation has expressed its own views, in the form most solemn which is known to them as a religious body, that is, by a vote of more than two-thirds of its members. In the amendments to their constitution, regularly adopted and passed in a regular meeting of the congregation, after reciting article 4 of chapter 6, the church has declared its moaning in these words : “Here, it is clearly given to understand, that our church is and shall and must remain an inseparably United Lutheran and Reformed one, as our documents from its original formation show.” The confessional connections between the Lutheran and Reform members of this congregation *are the only ones here referred to in this unalterable article; other indissoluble connections the congregation has now up to this time. This is one of the alterations which in the bill are called pretended amendments. We refer to it hero, not •or the purpose of sanctioning it as a valid declaration of the true meaning of article 4, but to show the views of a largo majority of the congregation at a time when wo may suppose the controversy had not progressed so far as to produce as much excitement and consequent prejudice or bias as may possibly have existed at a later period. In a matter so groat as this is, whether we are called upon to reverse the decision of the respectable pastor of a religious church, beloved by the great majority of his congregation, who esteem him as a valuable toacher, who act with him, sustaim him in his views by their votes in meetings of their church, and by their oaths in the interpretation of the articles of their association, and in bearing witness to his faithfulness, it is certain that we ought to bo well satisfied that justice and the very right is with those who demand judicial interference. The property of the church ought not to bo wrested from the lawful control of its members on any ground. It should not be interfered with by a chancery proceeding, and taken from the control of a majority of the church on slight ground, or for a cause which is not clear or free from doubt. More especially should equity refuse its aid to enforce the literal terms of an article, to exact to the uttermost the performance of an engagement against parties who would not have entered into it, if they had understood it to mean what is now claimed to be its meaning.

In general, the office of a court of chancery is not such as to compel it to exact forfeitures, and enforce them. This church has dissolved its connection with the Evangelical Lutheran Synod of Ohio, and therefore, say complainants, it has violated its constitution, and broken the condition in the deed from Heckman. This is the burden of the complainant’s complaint.

Now upon what foundation docs this gravo charge rest? *Upon the meaning of the word bei. A word of doubtful meaning, from the testimony of all witnesses. A G-erman preposition, that may be rendered in, within, or with, according to the context; and consequently, a word the German members of the congregation would have understood in reference to the subject upper» most in thoir minds at the time it was used. In construing statutes, one rule given by able writers as a guide to the moaning, is to consider the evil that was to be apprehended, and the remedy that was intended to be provided against that evil. That same rule is applicable here. And for a moment let us apply it. The congregation was a mixed one, embracing members agreeing in many of the more essential articles of faith and worship, and disagreeing on others which were considered by the early reformers of vital importance. A difference which had separated that strong-minded and sincere Christian, Martin Luther, from the fellowship of Christian brethren, who, like him, had been great in thoir day, in the great work of the reformation. From the beginning, this congregation had formed connections with themselves, incompatible with the established creed of the two distinct churches of which the members were composed. It was natural to anticipate that time might produce dissension, upon points which up to that period had been accommodated; and if so, difficulties would arise in reference to the church property, and the Lutherans and Reformed might separate. The object in view was to provide' for these contingencies, as is shown by the proof, and as may be gathered from this fourth article of the constitution. Hence, the latter clause of the article : “ In order to prevent difficulty which might arise between the Lutheran and Reformed members,” a provision is made against the division of the church property, against a community of interest by two or more separate congregations, and the connections between them are declared indissoluble. The connections which, it seems to us, were the object of article 4, were those vital to the unity, existence, and harmony of the church 5S9] as a distinct body. The separations and divisions *to be guarded against as utterly destructive, were then anticipated among the two sects who had been and were united in a common church. The plain object seems to have been to prevent a dissolution by the withdrawal of either the Lutheran or Reformed members, and a division of the property.

Their remedy agreed upon and fixed, was to make their existing state of union with each other unalterable, and to bind themselves by the ties of compact and community of interest in the church property, as a distinct, inseparable congregation. The proof clearly shows this to have been the paramount object of a lai’ge portion of the congregation at the time. Not a word was said about a permanent union with the synod. Nono had ever existed with that body, except by their voluntary consent; and to secure that connection in all future time was entirely foreign to the matter, which was then immediately and particularly engrossing the attention of the church.

In view of all these facts and circumstances, we are not prepared to adopt the views passed upon us on behalf of the complainants, and unite in the conclusion that the px-oof does not warrant a finding that the trust alleged as the foundation of our jurisdiction, had any legal existence binding upon the church in the manner set forth in the bill. This conclusion renders all further inquiry into the causes of difficulty unnecessary. They are matters beyond our jurisdiction, and to be settled by the society in the judicatories peculiar to its own oi’ganization.

Bill dismissed.


author: Avert, J.

text:
    *David Loring v. The State of Ohio. Joseph Talbert v. The Same. Harvey Hall v. The Same.
    Section 26 of the act amendatory of the tax law, 'which taxes rents reserved in leases for a term of fourteen years or upward, renewable and chargeable upon real property, which rents are to be assessed to the person entitled to receive the same, as personal property, at a principal sum, the interest of which, at the legal rate per annum, shall produce a sum equal to such annual rents, is constitutional.
    These three cases were reserved in the county of Franklin.
    They are appeals from the decisions of the auditor of state, and come into the Supreme Court under the provisions of the act for levying taxes passed March 2, 1846, and the amendatory act passed Februaiy 8, 1847.
    Henry Starr, for plaintiff.
    Henry Stanbery, attorney-general, for the state.
   Avert, J.

In section 65 of the act providing for levying taxes, is a provision that the auditor of state, with the advice of the attorney-general, shall decide all questions which arise as to the true construction of the act, subject to an appeal in all cases to the Supreme Court. The auditor, with the advice of the attorney-general, has decided adversely to the several claims of the appellants, and they have all appealed from the decision, and now ask the court to give a construction to the act and amendment, as *they affect the interests of the appellants. The error complained of in each of the cases is a misconstruction of section 26 of the amendatory act. That section is in these words:

' “It shall be the duty of such township assessors while engaged in ascertaining the taxable property, by diligent inquiry, annually to ascertain the amount of rents reserved in any leases in fee, for one or more lives, or for a term of years exceeding fourteen years, and the terms of which provide, by any contingency, for a continuance of renewal beyond such number of years, and chargeable upon any real property or land within the township, town, or ward, of which he is the assessor; which rents shall be assessed to the person or persons entitled to receive the same, as personal property, which it is hereby declared to be, for the purpose of taxation under this act and the act to which this is an amendment, at a principal sum, the interest of which, at the legal rate per annum, shall produce a sum equal to such annual rents; and in case such rents are pajmble in anything except money, the value of annual rents in money, shall be ascertained by the assessors, and the same shall be assessed as aforesaid, and taxes shall be charged, assessed, and collected from any personal property placed upon the grand duplicate in pursuance to the provisions of this section, the same as taxes are charged, assessed, and collected on other personal property in the particular township or ward wherein the same may have been placed upon the graud duplicate.”

The assessor, while engaged in ascertaining the taxable property, is directed to inquire for leases for a term of years exceeding fourteen, and renewable ; such leasos having rents reserved, chargeable upon any real property or land. He is to assess these rents as personal property, and to adopt one uniform rule for determining their value, as he places them upon the tax list; that of-fixing upon a sum whoso annual interest is just equal to the annual rent. In *each of the cases now before the court, there is a lease for a period longer than fourteen years, and renewable, with a rent reserved, chargeable upon land in Cincinnati, and in each case the amount of assessment is just as it is required to be by the statute. There seems, therefore, to be no room left for doubt, that the assessor followed in each case the words and the clear meaning of the statute.

But simply to put an interpretation upon this law, and, to ascertain its moaning, was not the object of these appellants in bringing their cases before the court. It was to present a graver inquiry, and to call in question the binding force of this law, however plain may be its meaning; and the right to make such an inquiry is conceded to these parties, for we would not be employed in examining mere phraseology, and putting an interpretation upon the words of a law, when its directions could not be enforced, because not in accordance with the constitution.

This law is claimed to be unconstitutional for various reasons:

Because it taxes one kind of property twice in the same year, when it taxes other kinds but once.

Because it taxes one kind of property in the hands of A., and does not tax the same in the hands of B.

Because it impairs the obligation of contracts.

Because it fixes the valuation of a certain kind of property, and does not leave it to be ascertained in the manner provided for all other property.

Because it taxes property where it does not exist, and makes property to get a tax, where there is none.

Among the causes here assigned, there is perhaps but one, that in terms is taken notice of in our constitution ; still, acts may bo void if not so noticed, though in all such cases, as one guide to the judgment is wanting, peculiar caution would seem to be demanded.

For the power, however, conferred upon the legislature, and for ascertaining its limits, we must look into the constitution *and bo governed either by its language or spirit. Now, upon this very subject of taxation, if I am not mistaken, we shall look in vain for any direct grant of such power in the instrument; and we shall be met with a provision there in these words: “To guard against the transgression of the high powers, which we have delegated, we declare that all powers, not hereby delegated, remain with the people.” In certain parts of the constitution, indeed, the subject is alluded to, and words are used,from which.the power may be inferred. But suppose there were no mention of a tax, or any distinct reference to it in the constitution, would there be any doubt of the existence of such a power in the legislature? Would it not be declared to be inherent in that body, because without it the constitution would be useless, and the government entirely without power? This right of taxation, then, which must be admitted to exist in the sovereign power, or the power sovereign under the constitution, whether given by express terms or not, will be regarded for all the purposes of the present inquiry as being in our constitution. But it is there, without, in terms, any limitation upon its exercise, either as to the amount to be assessed, or equality in the imposition of the tax. This consideration may lead us to use with caution the argument, that an exercise of the taxing power must be unconstitutional, because it would come to such a result, by being carried to extremes, and this remark may be applied particularly to what is said about fixing the valuation of the reserved rents, that if the legislature be sustained in calling them now worth $10,000, they may hereafter, and without any reason, call them worth $100,000. But this need not be apprehended, for they have been in the constant practice, ever since the foundation of the state government, of levying taxes, and though with reference to the subject here considered, without any restraint in the constitution, they have not proceeded to any such extreme length.

But what would be correct restraint upon the taxing power, ^according to the spirit of our constitution, and the nature of our free government? Who has ever been able to devise a plan of perfect taxation, making its burden always just or equal? To tax a man exactly according to his property, or according to his income; to tax every description of property, or to tax every description of property alike, has never been practiced. Is it either wrong or even impolitic to tax luxuries more heavily than articles of necessity; to exempt a few articles belonging to poor persons altogether, and to discriminate for vai’ious reasons among the several objects of taxation ? The intrinsic difficulties to bo found in the whole subject necessarily call for the exercise of prudence in any attempt to interfere with a tax law, lest the legislature should be embarrassed in its just efforts to pay the debts of the state. That a tax is unequal and burdensome, are proper .reasons for applying to the legislature for relief, but can seldom, if ever, justify the action of a court. All taxes are, to an extent, burdensome; there has been no time in the history of our state government when they were not unequal; and there is but little hazard in saying that this evil can not be entirely removed in the future.

In the argument of the cases now before the court, all the reasons that can be made applicable, have been urged to prove the law to be unconstitutional; and 1 have noted before, the chief points and principles relied upon.

It is said, as one of these points, that the law taxes property where it does not exist, makes property to get a tax where there is none.

The assessor, in his annual visit to ascertain the taxable property within his district, is shown a lease upon a certain lot of ground, in which the rent is reserved is $600. The lessor is to receive this sum in the course of the year, he is satisfied that ho will receive it, and he gives in the amount to the assessor that it may be put upon his list. This is right, the counsel for the lessor admit; this sum is his, or will be his in the course of the year, and it is proper that he should *pay taxes for it, and, as they contend, for this only. But the assessor takes a different view of the matter; he looks into the law, which is his guide in the case, and finds there that instead of $600, he is obliged to put down $10,000 upon his list. Hero, the counsel say, is property created, put upon the list, to furnish the basis for a tax, when it had no previous existence. It is called ideal property. Is such a view just? There is certainly here, one of the common-law incorporeal hereditaments, that has had a meaning and a sanction, and a value time out of mind ; and they are all ideal, if this is so. But by looking into the lease, if drawn in the usual form, and the first upon the property, the assessor will probably find, without using his arithmetic, the exact sum which the law directs him to put upon his list. It is the common case of the owner in fee, making a permanent lease, for ninety-nine years, renewable forever, reserving to himself the payment of an annual rent, stipulating for the entire use by the lessee, and his enjoyment of the property to himself and his assigns forever, and stipulating, amongst other things also (in the case supposed), that upon the payment of $10,000 a deed in fee simple will be executed.

Now in this case, by the terms of the instrument, the lessor has a.claim to $600 in the coarse of the year; but is all his interest in the lease beyond, this sum merely ideal, a fiction, a pure creation by the legislature? Before ho executed this lease, his interest in the property was worth $10,000 ; directly after its execution and when ho has received no consideration, does he believe that his estate has been so impaired ? If he had not supposed a sure provision for the aqnual income worth as much to him as the land, ho would not have accepted it in the place of the land, and if he were to offer that interest in the market, he would probably realize from it the price or about the price of his land. If he provided in the terms of the lease, as has been done in the cases under consideration, that the leasee should pay all the taxes, then the land is, in effect, not taxed to him. When he is to be ^assessed to bear his just portion of the necessary burden of taxation according to his wealth and apparent ability to pay, that which he has accepted in exchange for his land constitutes the item to be taxed. It is denominated in this law personal property, and treated as such both for assessment and collection. What name has been given to it is not important, the thing that is meant can be readily apprehended. We can not perceive in this law any principle of injustice in its action upon the lessor. All property is held to be liable to be taxed in some shape, unless exempted under the faith of the state, and in this case, ior all practical purposes, the lessee has become the owner of the land; ho takes possession and controls, and, if he chooses, sells it. When the lessor offered to part with this land, it was upon terms that would convoy all the valuable interest. Of course it would be liable to be taxed in future; but in this it did not differ from all other property.

This law, it is objected, taxes one kind of property twice in the same year. It taxes the property and taxes also its value. One of these taxes, however, is against the person who should be regarded the actual owner of the hind, and the other the owner of the consideration which he has received for it, and then the lessee has no more cause of complaint than the owner in fee, who has mortgaged it for the purchase money, or the owner of any other property who is in debt for it. But a system of taxation embracing this objectionable feature in regard to land, has been in existence ever since the legislature provided for levying taxes, and, in regard to personal property the same feature has existed also for a considerable time past. This length of time, it is true, does not prove that such a mode of distributing burdens is just; but the practice so long acquiesced in, is evidence that the evil in reality, and looking upon the whole subject, is not so great as it appears, or there is almost insuperable difficulty in obviating it. What, however, is this property of the lessee ? It may have risen immonselyin value since the *dato of his permanent lease. He may have erected costly buildings upon it, and made other valuable improvements, and it may therefore be proper to put it upon the tax list at several times the sum at which he bought it. This additional value from the rise of the land, and from the new buildings and improvements upon it, is justly chargeable as property of the lessee, subject to taxation.

It is further objected that the law fixes the valuation of a certain kind of property, 'and does not leave it to be ascertained as in the case of all other property, and therefore is unconstitutional. The long usage here also is properly enough suggested. For many years the law affecting nearly all of the taxable property, real and personal, was liable to an objection similar in principle, though as to lands differing in degree. Lands were divided into first, second, and third rates, and assessed according to rate, and not according to separate value, and chattels of the same kind, however different in value, went upon the tax'list as of the same value. To tax property according to its individual and true value, as a basis for our system, is a principle of rather modern date; and it will not follow that the law is unconstitutional, for the reason alone that the principle is not yet perfectly carried out. The valuation complained of is that which upon a lease at an annual rent of $000 is claimed to be $10,000. To us it appears that the value of the lessor’s property in the case is exactly ascertained; it is just what it would be likely to bring in the market.

This, then, being as we suppose true, the law would not be declared unconstitutional as to the cases before us, whatever might be said of its application to other cases.

Another objection urged is, that this law impairs the obligation of contracts, and is on that account void. The contracts referred to are those between the lessor and lessee. We can not see any such effect produced. They are as binding, and by our courts will be enforced in all their covenants between the parties, since the passage of the law, precisely *as they would have been before. No obligation of either of these contracts, as we think, is violated.

The remaining objections made to the law are considered by us as having force only against its expediency or policy, and not as touching the constitutional power to pass it.

Upon the whole, then, we ai’e all of the opinion that tho law is constitutional, as it operates upon the lessor and first lessee ; and a majority of the court believe it to be constitutional also as to tho subsequent lessees, but on this point one member of the court entertains some doubt.

In examining these cases, though we have come to the conclusion that no evil exists which can be remedied upon constitutional grounds by the action of this court, yet we could not fail to seo that an alleged inequality complained' of as unjust might easily be obviated. It is but to extend to the case one good principle already in the law—that which deducts the debts from the credits, and puts the balance only upon tho tax list. This evil, if found to exist, and justly to claim attention, would doubtless be removed on a proper representation to the body having control over the subject.

Through us, we are constrained to say, under no exercise of our constitutional power, are the appellants entitled to the relief they ask. The decisions made by the auditor will therefore be confirmed.