author: Bradbury, J.

text:
    McCurdy, Guardian v. Prugh, Treasurer.

      Rules for valuing personal property — Notes, book accounts and credits are property — Section 2 of article XII of constitution — Requirement as to true value and face value — Section 2738, Revised Statutes.

    1. Promissory notes, book accounts, and other credits are property and fall within that provision of section 2 of article XII of the constitution of this state which declares that “all real and personal property” shall be taxed “according to its true value in money,” and that clause of section 2139, Revised Statutes, which requires all credits payable in money to be listed for taxation at their face value, being repugnant to such constitutional provision, is void.
    2. Where property has been valued for taxation and taxed at its true value in money it is no defense against the payment of such tax that all other property within the state, through the mistaken or imperfect judgment of the taxing officers and equalizing boards, has been valued for taxation materially below its true value in money.'
    (Decided January 17, 1899 )
    Error to the Circuit Court of Miami county.
    This action was brought by the defendant in •error, John L. Prugh, as treasurer of Miami county, to recover of the plaintiff in error, John A. McCurdy, as guardian of a minor, certain taxes and penalties claimed to be due on account of the guardian having listed at too low a valuation certain promissory notes and other evidence of credit due him as such guardian.
    The treasurer recovered a judgment in the court ■of common pleas, which was affirmed by the circuit •court; whereupon the cause was brought to this court, by the guardian, to procure a reversal of those judgments.
    The facts will be stated in the opinion.

      Clyde (& McPherson, for plaintiff in error.

      Long c§ Kyle, for defendant in error.
   Bradbury, J.

This action was begun by fl ling a petition, which, as amended, after omitting the formal parts, reads as follows:

“Plaintiff complains of the defendant for that said defendant is indebted to him as treasurer of Miami county, Ohio, in the sum of $753.57, as taxes due from him as such guardian, for the years 1890, 1891,1892, 1893,1894 and 1895, on personal property of his said ward, Allyn Dunlap, which he, the said guardian as aforesaid refused to list for taxes during the years as aforesaid; for the year 1890, on property valued at $2,500, with $1,250 added thereto for penalty; for the year 1891 on property valued at $3,000, with $1,500 added thereto as penalty; for the year 1892 on property valued at $3,500 with $1,750 added thereto as penalty; for the year 1893 on $3,000, with $1,500 added thereto as penalty; for the year 1894 on $2,500 with $1,250 added thereto as penalty; for the year 1895 on $3,000 with $1,500 added thereto as penalty.”

To this amended petition, the following answer was interposed:

“Now comes John A. McCurdy, guardian of Allyn Dunlap, defendant herein, and, for answer to the amended petition of the said plaintiff, admits that said plaintiff is the duly elected, qualified and acting treasurer of Miami county, Ohio, and that said defendant, John A. McCurdy, is the duly appointed, qualified and acting guardian of Allyn Dunlap, a minor over fourteen years of age; and admits that the several amounts as stated in said amended petition, and for the years mentioned therein, were charged against said defendant, and that he refused to pay the same.

And, for defense, to said amended petition, defendant says that his said ward is possessed of a large amount of personal property in the form of notes and other evidence of indebtedness, and, as such guardian, he has each year, as complained of in said amended petition, listed said property for taxation at a value far in excess of the value of what other property, both real and personal, was and is listed for taxation during the years mentioned in said amended petition, in the state of Ohio and county of Miami, or both.

Defendant further says that in making his returns to the auditor of Miami county for the taxation, of his said ward’s property of said notes and other evidences of indebtedness he deducted, during all the years mentioned in said amended petition about twenty per cent, of their face value; and the amounts set out in said amended petition, for the several years therein mentioned, is the difference between the face value and the amount said property was listed for taxation.

Defendant further says that real estate, bank stock, notes and other personal property in the state of Ohio and in Miami county are not assessed or placed upon the tax duplicate by the officers of the state or county, who are authorized or charged with such duty, for more than seventy per cent, of their true value in money, and that such facts are recognized by all officers, both state and county, in making the appraisement of property for the purpose of taxation.

Defendant further says that the board of equalization of the city of Troy, Ohio, has, each year complained of in said amended petition, regularly passed upon the tax returns of the said defendant with full knowledge of the deduction made from the face value of the said notes and other evidences of indebtedness, and approved the same; and that said notes and other evidences of indebtedness were, each year during’ the time mentioned in said amended petition, assessed at a greater sum, in proportion to their true value in money, than the other property, both real and personal, in the state of Ohio.

Defendant further says that no other property is charged in said amended petition as being omitted from the returns made by the said defendant other than the twenty per cent, deducted from the face value of said notes and other evidences of indebtedness.

Defendant, further 'answering, says that in the listing of his said ward’s property as above stated, viz.: at about twenty per cent, less than its face value, that he took into consideration the risk and probability of loss incident to the loaning and .collections of the funds of his said ward, and that, by reason of all the above facts, said notes and other evidences of indebtedness were listed for taxation by said defendant at their true value in money, and far in excess of what all other property, both real and personal, in the state of Ohio, is or was assessed for taxation during the period complained of in said amended petition.

Wherefore, defendant asks that this action may be dismissed, and that he go hence without day, and with his costs herein.”

To this answer a demurrer was interposed on behalf of the treasurer and sustained by the court of common pleas. The plaintiff in error (defendant® in®that®*court)jrot^desiring to plead further, judgment was rendered against him for the amount claimed in the petition. This judgment was affirmed by the circuit court; whereupon the cause is brought, on error, to this court.

The only question made in' argument related to the sufficiency of the answer.

This answer, although it purports to be an entirety, really contains two distinct defenses. The object of the first one, in the order in which they are stated, is to defeat the claim of the treasurer, as set forth in the petition, by showing that the property which the plaintiff in error, was charged with listing at too low a valuation, consisted of promissory notes and other credits; that he had listed them at eighty per cent, of their face value, while during’ the same period all other property within the county where his return was made, as well as that within the state at large, had been listed for taxation at only seventy per cent, of its true value in money; and that this latter ratio of value was recognized throughout the county and state by all officers and boards thereof whose duties relate to valuing’, and equalizing values of property listed for taxation as the rule by which property was to be valued for taxation.

The oral arguments of counsel as well as that contained in their written brief were directed to this defense alone.

Counsel for plaintiff- in error contended that, as the demurrer admitted the facts stated in the answer to be true, it appeared that plaintiff in error, although he had not listed his ward’s property at its true value in money j^et had listed it at a valuation relatively greater than all other property in the state had been listed ; that it had borne its share of the burden of taxation before the county auditor had raised the valuation and added the penalties which were the foundation of the claim made in the petition; and that his ward’s property having- thus borne its share of that burden was protected from further exactions by section 2 of article XII, of our constitution, which reads as follows:

“Laws shall be passed, taxing by a uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise; and also all real and personal property, according to its true value in money; but burying g’rouhds, public school houses, houses used exclusively for public worship, institutions of purely public charity, public property used exclusively for any public purpose, and personal property, to an amount not exceeding in value two hundred dollars, for each individual, may, by general laws, be exempted from taxation; but all such laws shall be subject to alteration or repeal; and the value of all property, so exempted, shall, from time to time, be ascertained and published as may be directed by law. ’ ’

Just what is meant or intended to be accomplished by the first clause of section 2, of article XII, above cited, that “Laws shall be passed taxing by uniform rule,” etc., may not be perfectly clear. The language is mandatory and directed to the legislature, but it is manifest that no power exists in the state to compel that body to take action upon any subject. It would seem, therefore, that the only purpose this clause could serve would be to limit the power of the legislature when it did act by forbidding it to pass laws taxing one class of property by one rule and another class by another rule. For instance, the general assembly could not in the face of this clause of the constitution authorize money to be taxed at one rate and, real property at another rate. An attempt thus to •discriminate in favor of or against any class of property would violate this constitutional provision. In this respect, at least, this clause would secure uniformity. However, it does not bear very materially on the question before us. That question relates to the subject of valuation, and is governed by the second clause which prescribes that laws shall be passed taxing’ “all real and personal property” “according to its true value in money. ” This provision is clear and explicit. All property not exempt must be taxed, and the value placed on it for that purpose shall be “its true value in money.”

If the second clause establishes a fixed standard by which the value of all property, subject to taxation, shall be ascertained, and the first clause secures. a uniform rate at which, after being thus valued, it shall be taxed, it is manifest that together the two clauses cover the entire field and preclude inequality in either respect in as far as that end can be attained by a constitutional provision. However, as no discrimination in respect of rates is charged, we are at present only concerned with the constitutional provision which relates to valuation and establishes as a standard for that purpose the true value in money of all property subject to taxation. This provision of the constitution forbids the enactment of any statute discriminating in this respect for or against any article or class of property subject to taxation, and it is immaterial whether the discriminating provision relates to the property itself, depending on its character or uses, or whether it relates to the person of the owner. Whatever may be the nature of or the uses to which any particular article or class of property may be put, or whomsoever may be its owner, when taxed as property it must be valued according to the constitutional standard, and any statute prescribing any other rule or standard would be repugnant to the constitutional provision and therefore void.

Counsel for plaintiff in error, however does not contend in his argument that any such discriminative statute exists, nor does he deny the power of the general assembly to pass laws prescribing and regulating the method by which property shall be listed and valued for taxation.

The authority of the legislature to prescribe by statute a system for levying and collecting taxes is an incident of its legislative power, and the very section, of the constitution relied on by the plaintiff in error for his protection, contemplates, or even enjoins upon the legislature the performance of this labor. That body has acted and the rules it has prescribed for valuing property are found in sections 2739 and 2792, Revised Statutes, the former section relating to personal property, the latter to real estate.

The rules laid down in these sections are intended and in the main are well adapted to secure the listing- of every species of property subject to taxation according to the constitutional standard: i. e. according to its true value in money.

Section 2739, Revised Statutes, after prescribing a rule for valuing tangible personal property, investments in bonds, etc., money and depreciated circulating notes, proceeds to prescribe rules for valuing credits, and here the following provision ,appears:

“Every credit for a sum certain, payable either in money, property of any kind, labor or service, shall be valued at the full amount of the sum so payable, except that if it be for a specific article, or for a specified number or quantity of any article or articles of property, or for a certain amount of labor or services of any kind, it shall be valued at the current price of such property or of such labor or service, at the place where payable.”

This language seems to require in express terms, free from ambiguity, that every credit payable in money shall be valued for taxation at its face value. The words employed are: “Every credit for a sum certain * * * shall be valued at the full amount of the sum so payable except, ” etc., etc., and the exception does not apply where the credit is payable in money.' What is the meaning of the phrase £ £ the full amount of the sum so payable ” ? It is, we think, susceptible of only one construction, and that it means the “sum payable ” by the terms of the instrument and this is equivalent to “payable on the face of the instrument.” The language will bear no other construction, and as thus construed, manifestly it requires the owner of a promissory note, book account or other credit payable in money, to list the same for taxation at its face value without regard to the solvency of the maker or debtor, and as thus construed,' the provision clearly conflicts with that clause of section 2 of article XII of the constitution, which declares that all property subject to taxation shall be listed at its “true value in money.” For the face value of a promissory note or book account held against an insolvent person, or the sum payable by its terms, is not- its true value in money in any fair sense of that phrase.

The legislature no more has power to prescribe an arbitrary and fixed value for this specie of property than it has in respect to any other class. As well might it attempt to declare that, without regard to its actual value, every horse shall be valued for taxation at one hundred dollars, and every cow at one dollar.

The answer interposed bj^ the plaintiff in error, is not as clear and explicit as it should have been where so important a question was to be made as was argued by counsel. The discussion of-counsel took a wider range than the answer justified. That answer when analyzed does not set forth that any statute of the state discriminates against credits, and no consideration of the provisions of section 2739 Revised Statutes, which does so discriminate would have been necessary, but for the fact that his answer shows that his ward’s property was of that class, and had been listed at only eighty per cent, of its face value. If that provision of section 2739 a fair construction of which, as already shown, requires credits to be listed at their face value, was valid then the admission that he had-listed those of his ward at eighty per cent, only of such face value, would be fatal to his defense even if eighty per cent, of their face value was their true value in money.

This will bring us to the consideration of the defenses specifically made in the answer.

1. We think that a careful examination of this answer will show that although it states that property throughout the state including the county of Miami, was assessed at not over seventy per cent, of its true value in money and that such fact was recognized by all officers, state and county, in making appraisements of property for taxation, yet that it does not set forth any unlawful conspiracy by those officers to discriminate against credits generally or against those of the ward of plaintiff in error, and that therefore the invalidating- effect of such a conspiracy is not before us.

It follows therefore that, as far as concerns this branch of the case the claim of the plaintiff to relief rests upon the mistaken judgment of assessing officers, and equalizing boards. He does not contend that his wards property was taxed at more than its true value in money, but that by the erroneous judgments of the taxing officers and boards throughout the state all other property was valued too low.

This complaint is not answered by replying that if his property has not been valued too high, it does not concern him that other property is valued too low. , For it must be presumed that the public authorities will levy no more taxes than are needed for public purposes, and if this be so, then as the value of the whole taxable property of the state, or of any particular taxing district, is diminished, the rate of taxation must of necessity be increased. Therefore if the property of the ward, of plaintiff in error, was valued at its true value in money, and all other property in the state or district was valued by the same standard, it follows that the rate of taxation would be less than if all other property in the state or district was valued at only fifty per cent, of its true value in money. Therefore, the burden imposed on each taxpayer within the state or within any taxing district of the state is increased in the same proportion that the value of all other property within his district is diminished. The only valid answer to the complaint made on this ground lies in the inherent difficulties that necessarily intervene. With a considerable afmy of officers each of whom in the first instance is authorized to fix a value on every article of prop=erty subject to taxation in his district and a large number of separate equalizing boards acting independently of each other, exact equality of valuation is wholly Impracticable, and according to the natural course of things material inequalities in this respect may be expected, and it is a matter of common knowledge that notwithstanding this constitutional provision and numerous statutes enacted in accordance with it, inequalities have constantly crept in. That the ratio between the value of real estate and its assessed value for taxation in one county may and often does materially differ from that which prevails in another county. This ratio may and doubtless does differ in different townships of the same county, in different wards of the same municipality, or even in respect to different pieces of real estate in the same ward or township. So in respect to articles of tangible personal property. For instance if each horse, cow, and each sheep had the same value, that every other animal of its kind bears, the rule of uniform valuation could be easily and accurately applied to them. Unfortunately for this purpose each has a distinct individuality— such as respects age, size, form, breeding’, etc. — and its value depends upon these individual qualities, and it is quite improbable that two men could not be found who, after easting up the individual qualities of each animal would arrive at the same estimates of its value. The mischief has prevailed ever since the adoption of the present constitution, nearly half a century ago, and the fact that this is the first appeal made to the courts of the state for a remedy .against it goes far to show that in the opinion of the bar of the state and of those who suffer on account of it no remedy existed. This mischief so long endured counsel for plaintiff in error has depicted with much force and ingenuity, but he suggested no remedy, and we have discovered none susceptible of practical application by the courts of the state. Indeed it may be doubted whether the whole judicial force of the state, even if directed to that end, would be adequate to the task of settling the innumerable controversies that would probably arise if it should undertake to revise the values yearly placed on every article of personal property in the state subject to taxation.

We think, therefore, that where property has been valued according to the constitutional rule, and has been taxed upon that basis, its owner cannot defend against its payment by showing that, on account of the erroneous judgment of assessing officers and boards of equalization, all other property within the state or district has been valued too low, and taxed upon that lower valuation. For inequalities thus arising no relief can be given by the courts. The remedy, if any exists, lies in the selection of officers who possess a sounder judgment.

2. The last clause of the answer of the guardian, however, contained the following allegations, which we think constitute a complete and valid defense to the petition:

Defendant, further answering, says that in the listing of his said ward’s property as above stated, viz.: at about twenty per cent, less than its face value, that he took into consideration the risk and probability of loss incident to the loaning and collections of the funds of his said ward, and that, by reason of all the above fasts, said notes and other evidences of indebtedness were listed for taxation by said defendant at their true value in money. * * *

We think these averments when fairly construed show that during the years named in the petition, the notes and other credits of the ward had been listed and returned for taxation at their true value in money, although at only eighty per cent, of their face value. If this is true no additional value could have been lawfully added by the county auditor, for as already shown, that provision of section 2739, Revised Statutes, which requires credits to be listed for taxation at their face value is invalid because repugnant to that clause of section 2 of article XII of the constitution of this state which requires that all property subject to taxation shall be valued for that purpose at its true value in money. For this reason the judgment of the circuit court will be reversed.

Judgment reversed.


source: Caselaw Access Project

author: Spear, C. J.

license: Public Domain

text:
    Megrue et al. Receivers v. Lennox.

      Action against receivers of railroad, company — For killing stock —Allegation o/ negligence — Erroneous admission of evidence.

    Where in an action against receivers of the property of a railroad company to recover for the killing of stock, the only allegation of negligence in the petition is that the defendants had neglected to maintain a fence sufficient to turn stock, it is error to admit evidence that the stock got upon the track through a gate at a farm crossing carelessly left open, there being no claim that the gate itself was out of repair. And in such case, it is also error to overrule a motion to arrest the evidence from the jury, interposed at the conclusion of the plaintiff’s testimony, where there is no evidence bearing upon the negligence of the defendants except that so erroneously admitted.
    (Decided January 17, 1899.)
    Error to Circuit Court of Pike county.
    The case is stated in the opinion.

      W. B. Richie and W. II. Leete, for plaintiffs in error.

      F. F. Dougherty, for defendant in error.
   Spear, C. J.

The action below was William Lennox against Joseph R. Megrue and N. E. Matthews as receivers of the Ohio Southern Railroad Company, to recover the value of two horses killed on the line of the railroad.

In his petition the plaintiff charged that the horses escaped through their enclosure without fault or knowledge of the plaintiff, and into an adjoining field to a point on the farm of one Worthen, on the railroad, where the defendants had failed to maintain a fence'sufficient to turn stock, and by reason of said omission of the defendants to fence the line of the railroad, the horses without any fault of plaintiff, strayed upon the line of the railroad and were run against and killed by a locomotive and cars managed by defendants’ agents and' servants. No other negligence was ¡alleged, nor was any cause for the killing of the horses averred except their straying upon the track by reason of the failure by the receivers to maintain a fence sufficient to turn stock.

These allegations were denied by the answer.

At the trial, the plaintiff offered testimony tending’ to show that during- the night season the horses got from plaintiff’s field, into which they had been turned to pasture, and into the field of Worthen, by reason of the bars between the two fields having been thrown down, and that from the field of Worthen they straj^ed upon the railroad -track through a gate leading to a farm crossing which had been put in by the company for the accommodation of Worthen, who owned land on both sides of the railroad.

To the evidence respecting the gate and the passing of the horses throug-h it, the defendants objected and excepted. Plaintiff’s evidence tended to show that the railroad land was fenced upon each side of its track, and that this fence was not down at any point, and no claim was made that the horses got upon the track save through the gate. No testimony was offered tending to show that the gate was out of repair, nor that the defendants were in any way responsible for the gate being open, nor that they had knowledge that it was open.

At the conclusion of plaintiff’s testimony defendants moved to arrest the case from the jury, which, motion was overruled. A verdict for plaintiff followed, and a motion for new trial being overruled, judgment was entered on the verdict, which was affirmed by the circuit court. Grounds of error alleged are the admitting of incompetent evidence, the overruling of the motion in arrest and the overruling of the motion for a new trial.

Having in mind that one of the essential rules of pleading is that the facts constituting the cause of action must be distinctly stated in the petition in order that they may be Understood by the party who is to answer them, it is plain that this rule is not satisfied in the present ease by the allegation charging a failure to maintain a fence sufficient to turn stock unless it can be shown that, within the meaning of our statute, a gate is a part of a fence in such sense that there is placed upon the company the duty of care and watchfulness with respect to it equivalent to its duty in that regard concerning the maintenance of a fence. The affirmative of this, we think, cannot be maintained. Our statute imposes upon railroad companies the duty of fencing their lines, but it also recognizes the right of land owners whose premises adjoin both sides of a railroad to have a crossing for their accommodation, where they cannot be accommodated by a public crossing, and makes provision for enforcing’ this right: In the nature of things such a crossing cannot be of use unless some method of getting through, the fence is provided, such as bars or a gate. When such bars or gate are constructed the duty of keeping- the same closed, save when in use, primarily devolves upon the land owner, and not upon the company, and the mere fact that a gate is. found open does not impute negligence to the company. Ill. Cen. R. R. Co. v. McKee, 43 Ill., 119; C. B. & Q. R. Co. v. Magee, 60 Ill., 529.

These considerations make it clear, we think, that a gate is not a part of a fence in such sense as that an allegation of a failure to maintain a fence is the equivalent of an averment of negligence in carelessly allowing a gate to remain open; that is, a fence is not out of repair, nor can it be so presumed merely because a gate is carelessly left open. R. R. Co. v. McKee and R. R. Co. v. Magee, supra.

Issue was taken upon the condition of the fence and none respecting the gate. Hence the rule which requires testimony to be confined to matters in issue was violated by admission of testimony tending to show that the gate was open and that the horses got upon the track by that means. It was, therefore, error to overrule the defendant’s objection to that testimony, as well as error to overrule the motion for new trial, and clearly prejudicial error. This conclusion. would require a reversal of the judgment. But the court also overruled the motion of the defendants to arrest the testimony from the jury interposed at the conclusion of the plaintiff’s case. The gravamen of the action was, as we have found, neglect in not keeping the fence in repair, and the testimony tending to show that the gate was carelessly left open not tending in any way to sustain this charge, and there being no testimony of any kind tending to support it, but in fact an admission by plaintiff on the stand that the fence itself was in repair, the plaintiff’s case wholly failed for want of evidence, and the motion should have been sustained. For these errors the judgment below will be reversed and judgment entered here for plaintiff in error.

Beversed.


author: By the Court:

text:
    Rauh et al., Partners as Rauh Bros. & Co. v. Aknovitch and Levy & Co.

      Execution against property — No preferences on judgments sued out in same term — Filing of transcripts — Sections 5S77 and 5382, Revised Statutes.

    Section 5382 of the Revised Statutes, providing that 11 when two or more writs of execution against the same debtor are sued out during the term in which judgment was rendered * * * no preference shall be given to either of such writs * * *, ” applies alike to executions issued on transcripts of judgments of justices of the peace filed in the office of the clerk of the court of common pleas under section 5377 and to those issued on judgments of the court of common pleas.
    (Decided January 27, 1899;)
    Error to the Circuit Court of Jefferson county.
    This case involves the right of Levy & Company to participate in the distribution of the proceeds of chattels sold by the sheriff of Jefferson county as the property of Joseph B. Aknovitch being all the property which he possessed. The contending parties are execution creditors of Aknovitch and their rights depend upon this state of facts: On the fourteenth of January, 1896, Rauh Bros. & Co. recovered a judgment against Aknovitch in the court of common pleas for the sum of $1,401.60* On the same day execution on that judgment was issued and levied upon the chattels of Aknovitch. On the fifteenth day of January one Abe Aknovitch recovered a judgment against Joseph B. Aknovitch in the same court for the sum of $901.00 upon which execution was issued and levied on the same day upon the same goods and chattels. On the fifteenth day of January, 1896, one Moses Esaeovitch recovered a judgment against Joseph B. Aknovitch in the same court for the sum of $560 upon which execution was also issued and levied on the same day upon the same goods and chattels. All of said judgments were rendered upon notes with warrants of attorney attached for the confession of judgment. On the twenty-first of January, 1896, Levy' & Co. ■ recovered a judgment before a justice of the peace of Jeffetson county for the sum of $205.75, and on the same day filed a transcript of such judgment with the clerk of the court of common pleas of Jefferson county which was by him on that day duly entered on the execution docket in his office, and • on the same day said clerk at the instance of Levy & Co. issued an execution upon said judgment to the sheriff of said county, and the sheriff on the same day levied that execution upon the same goods and chattels. The January term of the court of common pleas of Jefferson county commenced on the sixth day of January, 1896, and closed on the fifteenth day of February. On the twenty-seventh day of January, 1896, the chattels so taken upon execution by the sheriff were sold for the sum of $1,314.
    Upon these facts the court of common pleas ordered a distribution of the proceeds of sale after the payment of costs to all the judgment creditors, including Levy & Co., in proportion to the amounts of their demands, and its judgment was affirmed by the circuit court.

      John M. Cook, for plaintiff in error.

      P. P. Lewis, for Levy & Co.
   By the Court:

It is provided in section 5382 that “when two or more writs of execution against the same debtor are sued out during the term in which judgment was rendered * * * , no preference shaíl be given to either of such writs ; but if a sufficient sum of money be not made to satisfy all executions, the amount made shall be distributed to the several creditors in proportion to the amounts of their respective demands.” Section 5377 authorizes one who recovers a judgment before a justice of the peace to file in the office of the clerk of the court of common pleas a transcript thereof. The effect of such filing with respect to the seizure of the chattels of the debtor is defined in section 5379: “Execution may be issued on such judgment at any time after filing the transcript as if the judgment had been rendered in court.”

With respect to the issuance of execution, the effect and the return thereof, executions issued by the clerk upon such transcripts are placed upon the same footing with those issued upon judgments of the court of common pleas. Nothing’ inconsistent with the judgment below was decided in Meier & Co. et al., v. Bank et al., 55 Ohio St., 446.

Judgment affirmed.


author: By the Court.

text:
    Thompson et al. v. Nemeyer, Mayor, et al.

      Power of city or village to sell tts gas plant — Section 1692-84 Revised Statutes — Municipal corporation law.

    Under section 1692 subdivision 34, Revised Statutes, a city or village has power to sell its gas plant.
    (Decided January 24, 1899.)
    Error to the Circuit Court of Hancock county.
    In the year 1886 the city of Findlay, by proper action of its council, determined to establish and erect a natural gas plant for the purpose of supplying the city and the citizens thereof with natural gas for public and private use and consumption, and such a gas .plant was properly established and a board of gas trustees appointed and afterward elected as authorized by law; and wells for natural gas were drilled, pipes laid and natural gas furnished an'd supplied to the city for public lighting and to the citizens for public and private use and consumption. . And this gas plant was continued and operated with considerable profit at times until the latter part of the year 1898, when the city council, with the approval of the board of improvements and board of gas trustees, entered into a contract to sell the gas plant together with a franchise to use the streets, alleys and public grounds of the city by the purchaser, for the purpose of continuing and carrying on the business of supplying natural gas to the city and its citizens, the same as had been previously done by the city itself. Thereupon A. W. Thompson and Thomas Kelly, citizens and tax-payers requested the city solicitor to apply to the proper court for an injunction to restrain the city from so selling and disposing of its gas plant. The city solicitor refused to commence such action, and thereupon Mr. Thompson and Mr. Kelly, on behalf of the city of Findlay, commenced this action against the mayor and the city council, naming them individually, to restrain the execution of said contract. The defendants demurred to the petition and the court of common pleas sustained the demurrer and dismissed the petition. The cause was appealed to the circuit court, and that court also sustained the demurrer and dismissed the petition. Thereupon a petition in error was filed in this court seeking to reverse the judgments of the courts below.

      George II. Phelps, for plaintiffs in error.
    The statute (Sec. 1777-8) is remedial; for the benefit and protection of the city and her citizens, against excesses by and on the part of her various municipal agencies; and the prompt application for the injunctive remedy is to be commended rather than discouraged. Gas Co. v. Elyria, 57 Ohio St., 383; 29 Ohio St., 291; 26 Ohio St., 625; Lutman v. Railroad, 56 Ohio St., 433.
    Both the city, herself, and all her agencies, are alike subject to the settled rule respecting all power derived from legislative enactment. They possess such power, and such only as is expressly conferred, and such as is incidental or implied, as being necessary to carry into effect those powers which are expressly granted ; and doubtful, claims to power are resolved against them. Ravenna v. Railroad, 45 Ohio St., 121; Markley v. Mineral City, 58 Ohio St., 439; City of Wellston v. Morgan, ante 147.

      The general powers of cities and villages in Ohio, including that to take, hold and dispose of property, for the use of the city, is conferred by the Revised' Statutes, section 1692,' in its various subdivisions.
    Subdivision 34 of that section, is that relating to the power of the city generally to take, hold, sell, lease and dispose of property, for the use of the corporation. Revised Statutes, sections 2673, 2675, 2487 and 2489.
    Thus far we have no municipal power, and no municipal agency in respect to the subject of the present controversy.
    In this legislation the city was given a new corporate power and capacity; and, at the same time, there was. created for her a special agency, not to sell and dispose of her corporate enterprise, but to erect, maintain and operate the same for her benefit, and the benefit of her citizens at large.
    It is only for the muoicipal corporate use that the city herself can buy or hold property of any description.
    That the legislature has not conferred upon cities the right and power to erect or purchase gas works property, to be sold at a profit when so erected, it ought to be sufficient for all purposes and for all' time, that the constitution of our state expressly denies to the legislature any such power. Constitution, article 8, section 6; Adams v. Nemeyer, 54 Ohio St., 614.
    This court, in several recent and well considered cases, has held that the use of gas property by our municipal corporations, under existing legislation, is a distinctly and exclusively public use. State ex rel. v. Toledo, 48 Ohio St., 112; Toledo v. Hosler, Treas., 54 Ohio St., 418.

      It is elementary in municipal law that this class of municipal property, held for the public use of its citizens, cannot be sold except by authority of the legislature. New Orleans v. Morris, 105 U. S., 600; Merriweather v. Garret, 102 U. S., 473; Rochester v. Rush, 80 N. Y., 302; Dillon on Municipal Corporations, Third Edition, section 650 and note; Taylor v. Commissioners, 23 Ohio St., 78; 39 Lawyer’s Reports, Annotated, 841; Huron Waterworks Co. v. The City of Huron, S. D., Vol. 30, L. R. A.

      Marion G. Foster, city solicitor, and Ross c& Kinder, for defendants in error:
    We claim that the authority to acquire and dispose of the property in question in this case is specifically granted by sections 1552, 1692-34, 2673, 2675 Bates’ Revised Statutes of Ohio, and further that if the authority to dispose of were not so granted, the authority to acquire by implication, gives authority to dispose of the same. Reynolds v. Com. of Stark County, 5 Ohio, 204; Gall v. Cincinnati, 18 Ohio St., 563; Cincinnati v. Cameron, 33 Ohio St., 336.
    Municipal corporations proper, as ordinarily constituted, are possessed of a double character— the one public, and the other private.
    If granted for public purposes exclusively, they belong to the corporate body in its public, political or municipal character.
    But if the grant was for purposes of private advantage or emoluments, though the public may derive a common benefit therefrom, the corporation, quo ad hoc, is to be regarded as a private company.

      It stands on the same footing as would any individual or body of persons upon whom like special franchises had been conferred. 4 Waite, Action and Defenses, 596; 31 Penn. St., 175; 1 Dillon on Mun. Corp., 107.
    Section 2486 provides “that the council of any city or village shall have power, whenever it may be deemed expedient and for the public good, to erect gas works at the expense of the corporation, or to purchase any gas plant already erected therein.” Bailey v. Philadelphia, 39 L. R. A.; 184 Pa. St., 594.
    It has been held by this court that the city council, in cities of the second class having no board of improvements, have power to sell and convey real estate of the city, without'any recommendation of the board. Newton v. Com. Mahoning County, 26 Ohio St., 618.
   By the Court.

By the 34th subdivision of section 1692, cities and villages are granted the power “to acquire by purchase or otherwise and hold real estate, or any interest therein, and other property for the use of the corporation, and to sell or lease the same.” The city having acquired the property known as the gas plant and held the same for over twelve years, for some reason satisfactory to the officers of the city, concluded to sell and dispose of the same for a price agreed upon between the contracting parties. This was not in the nature of a speculation, but was disposing of property which the city did not desire to longer hold or use, and the statute just quoted clearly gives the city the power to make such sale whenever in the judgment of the officers of the city it becomes for the best interests of such city. The petition does not claim that there was any fraud or improper motive in the proceedings to sell the gas plant, but everything was in good faith, and in the judgment of the officers of the city, for the best interests of the municipality. It is therefore clear that the city has the right and power to make such sale, and that' the judgments of the courts below in sustaining the demurrer and dismissing the petition were right.

Judgment affirmed.


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    State of Ohio v. Pohlmeyer.

      Indictment for embezzlement of moneys — By agent of foreign corporation — No defense that corporation failed to comply with sections 148c and 148d, Revised Statutes.

    On the trial of an indictment for the embezzlement of moneys coming into the possession of the defendant as the agent of a foreign corporation it is not a defense that the corporation had failed to file with the secretary of state the statement required by sections 148c and 148d of the Revised Statutes.
    (Decided January 24, 1899.)
    Exceptions of the prosecuting attorney to rulings of the Common Pleas court of Hamilton county.
    At the January term, 1898, of the court of common pleas of Hamilton county, Pohlmeyer was placed upon trial on an indictment charging that as an employee, to-wit: the agent of the W. L. Douglas Shoe Company, he, the said Pohlmeyer, did unlawfully and fraudulently embezzle and convert to his own use, without the assent of his said employer, the sum of $287 which had come into his possession and care by virtue of his said employment. The slate offered evidence tending to show that Pohlmeyer was employed on August 11, 1896, in Hamilton county as the agent for the W. L. Douglas Shoe Company a corporation organized under the laws of Massachusetts, doing business as a corporation with its principal office at Brook-ton, Massachusetts, and further tending to show that about the time alleged in the indictment the sum of money charged, being the property of said company, came into the possession of Pohlmeyer as such agent, and that he embezzled and converted ■ the same to his own use without the consent of his employer. Thereupon the defendant called as a witness Charles Kinney, the secretary of state of Ohio, who testified that as such officer he is the custodian of the records, papers and certificates of foreign corporations filed in the state of Ohio, is personally familiar with such records, papers and certificates that he has carefully examined them and finds from such examination that the W. L. Douglas Shoe Company has not filed with the secretary of state the certificate required under section 148c and section 3269-5, and that said company has filed no paper or papers, certificate or statement whatever with the secretary of state since the passage of the act. To this testimony the prosecuting attorney objected. His objection was overruled and to that ruling he took an exception. The defendant thereupon rested his case. The court thereupon instructed the jury that in view of this evidence the accused was not and could not be the agent of the W. L. Douglas Shoe Company, and there could be no conviction under the indictment and further instructed the jury to return a verdict for the defendant, to which instruction the prosecuting attorney excepted.

      John G. Schwartz, prosecuting attorney and Thomas II. Darby, assistant prosecuting attorney, for plaintiff.
    it appears to be the settled doctrine in this country, and possibly in England, that a servant in his own wrong, or, as in this case, a servant who receives on behalf of his employer, or a servant who exceeds his authority in receiving the property of his employer, is estopped, upon a criminal prosecution for the embezzlement of such property, to deny that he had the authority which he assumed.
    The authorities upon the liability of such an’ agent to account to his principal, who may be a wrong-doer, are very clear. A few extracts will serve to show the trend of judicial opinion: Story on Agency, section 347; Dunlap’s Paley’s Agency, 62; Wood on Master and Servant, section 202; Whart. on Agency, sections 26, 250; Mechem on Agency, section 526; 2 Bish. Cr. Law, section 354; Com. v. Shober, 3 Pa. Sup. Ct. Rep., 554; State v. O'Brien, 94 Tenn., 79; section 2547 Codeof Tenn., 1896; People v. Hawkins, 64 N. W. Rep., 736; Leonard v. The State, 7 Texas App., 417; Ex parte Record, 11 Nev., 287; Tumey, 81 Ind. Rep., 559; Wharton, Criminal Law, Vol. 1, 10th edition, section 1038; Rex v. Becall, First C. & P., 454; Commonwealth v. Smith, 129 Mass., 104; People v. Royce, 106 Cal., 173; Queen v. Tankard, 1 Q. B. D. (1894), 548; State v. Spaulding, 24 Kan., 1; State v. Shadd, 80 Mo., 358; 2 Moody C. C., 249; Newburg Co. v. Weare, 27 Ohio St., 343.

      II II. Rulison, Jr., for defendant.
    The testimony showed that the W. L. Douglas Shoe Company was a Massachusetts corporation.

      The defendant offered on his behalf evidence tending to show that the said W. L. Douglas Shoe Company had not complied with sections 148c and 3269-5 of the Revised Statutes.
    Therefore, the conclusion must be that John H. Pohlmeyer is not an agent of the W. L. Douglas Shoe Co., although were it not for this statute he would be, without any possible question, and therefore he cannot be convicted in this case.
    The Douglas Shoe Company may be estopped from denying Pohlmeyer as its agent, but Pohlmeyer has done nothing by which the public or any one dealing with the Douglas Shoe Company was defrauded through any fault of his.
    The Douglas Shoe Company was not a corporation “in this state.” It could not exercise corporate rights in this state. An unlawful corporation cannot maintain an agent; or, rather, a body of persons assuming to act as a corporation cannot, as a corporation, maintain an agent.
    This was first decided in England in 8 C. & P., 642, the case of Rex v. Wm. Hunt; Com. v. Cain 14 Bush, 525 (Kentucky); Corry v. The State, 55 Ga., 236; State v. O'Brien, 94 Tennessee, —.
    The Ohio law, the embezzlement statute, it will be observed, section 6842, reads, “An agent of ‘ any person' who embezzles,” etc.
    The record shows that the individuals assuming to act as the Douglas Shoe Company did not take steps required by the laws of Ohio to constitute themselves a “person."

    Criminal statutes should be strictly construed. Wharton, Criminal Law, section 1035.
    The word “person” as used in the Ohio Revised Statutes includes corporations.

      Without having been authorized by the secretary of state to do business as a corporation, the Douglas Shoe Company was not a “corporation” or a “person” in Ohio.
    Pohlmeyer was not an “agent” in any sense of the term.
    He was appointed as “manager,” his only duty was to receive and sell shoes at a fixed price.
    He had no fiduciary discretion.
    He acted strictly and .literally under and by directions from the home office, “to sell shoes at fixed price and deposit the proceeds.”
    He was at most a “servant,” if any thing. Gravatt v. State, 25 Ohio St., 162.
    Or a bailee under section 6849a, Revised Statutes.
    The company did not have, did not attempt to maintain, an “agent” in Ohio.
   By the Court:

It is required by sections 148c and 14S>d of the Revised Statutes (the latter section being referred to in the record as section 3269-5) that every foreign corporation incorporated for the purpose of profit, before it proceeds to do any business in this state, shall make and file with the secretary of state a statement in such form as the secretary of state may prescribe, showing the number of shares of authorized capital stock of the company, the par value of each share and other facts affecting its organization and solvency and the proportion of its stock which is represented by property owned and used in Ohio. The sections clearly disclose the purpose of the general assembly that foreign corporations shall be put upon the same footing with domestic corporations with respect to fiscal burdens, to the business which they may carry on in the state and to service of judicial process within the state. They do not disclose a purpose on the part of the general assembly to make booty of the property of a corporation which does not comply with the provisions of the act. Under the statute defining embezzlement (section 6842) the offense consists in converting to one’s own use ‘ ‘anything of value which comes into his possession by virtue of his employment as * * * agent * * * servant or empk^e.” The statutory definition of the offense regards the actual relation of the agent, servant or employe, and not the legality of the mode in' which it was created nor the extent of the authority conferred. And the rule that one who receives money or any other thing of value in the assumed exercise of authority as agent for another, is estopped thereafter to deny such authority, applies in criminal prosecutions as well as in civil actions. 2nd Bishop’s New Criminal Law, section 364. State v. Spaulding, 24 Kas., 1; State v. Tumey, 81 Ind., 559; State v. O'Brien, 94 Tenn., 79; People v. Hawkins, 106 Mich., 479.

Exceptions sustained.


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    Bahmann v. Stoner.

      Plea of tender of money before suit — Applies to actions of like, character before justice of the peace.

    Section 5ÍSi, Revised Statutes, which provides that a defendant in an action on a contract for the payment of money, who seeks to have the advantage of a tender made before suit in the common pleas, must pay the money tendered to the clerk before the trial, applies to actions of like character before a justice of the peace. And in such case, to keep the tender good, the amount must be deposited with the justice before trial.
    (Decided January 24, 1899.)
    Error to the Circuit Court of Hamilton county.
    Stoner sued Bahmann before a justice of the peace for rent, $37.50, and for damages to premises, $100, in all $137.50, and recovered a judgment therefor, and for costs. On appeal to the common pleas, Bahmann pleaded and proved that, before action brought, he tendered Stoner the amount due under the lease, $38.85, which was refused. He also set up a counterclaim on which he asked judgment for $50. A verdict was rendered in favor of plaintiff for the exact amount of the tender, >$38.85. It then being shown that the amount of $38.85 had been paid in by defendant to the clerk of the court before trial, it was considered that the plaintiff pay all the costs of the action, and that the clerk apply the amount deposited to the payment of the costs. And it appearing that the costs exceeded the amount of the tender by $6.79, judgment was rendered in favor of defendant against plaintiff for that amount. On error the circuit' court reversed this judgment and rendered final judgment against Bahmann for the amount of the verdict, interest and costs.

      Aaron A. Ferris, for plaintiff in error.

      George W. Eengst, for defendant in error.
   By the Court:

We see no error in the judgment of the circuit court reversing that of the common pleas. If the defendant desired to avail himself of his tender he should have kept it good by depositing the amount with the justice of the peace. Section 5137, Revised Statutes, requires such deposit to be made where the action is first begun in the common pleas. By section 6705, the provisions governing practice in the common pleas which are in their nature applicable to actions before justices of the peace, and where no special provision is found, are made applicable to such actions, and no reason is perceived why the requirements of section 5137 should not govern like actions first brought before justices. They seem to be in their nature applicable, and no special provision relating to the subject is found in the justice’s code. Such has been the practice and is, we think, the understanding of the bench and bar throughout the state. See Swan’s Treatise, 17th ed., p. 861.

Nor did the circuit court err in rendering final judgment. The defendant was content with the judgment of the common pleas, and the only question before the reviewing court was as to the judgment so rendered. The question was not whether the trial had been properly conducted, nor whether the verdict was for the proper amount, but whether the judgment rendered upon the verdict was right.

Judgment affirmed.


author: Burket, J. By the Court :

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    Heeney v. Kilbane.

      Slander suit— What facts must be pleaded— Words spoken presumed ■ to be in English — Plea of guilty in former criminal case as evidence in civil action — How introduced — Testimony of magistrate erroneous, when.

    1. When the plaintiff in a slander suit desires to broaden and intensify the meaning of the words spoken, by connecting them with extrinsic facts, such facts must be pleaded in the petition; hut in the absence of a motion to make more specific and certain, a general averment as to such extrinsic facts will be sufficient.
    2. In an action for slander, the words spoken are presumed to have been spoken in the English language, unless the contrary is made to appear; and if spoken in a foreign tongue there can be no recovery, unless the words are set out in the tongue in which they were spoken, followed by a translation into English,
    3. When a person is arrested before a magistrate upon an affidavit charging him with a crime, and he enters a plea of guilty to the charge, and thereafter a civil action is brought against him to recover damages for the same wrong, to entitle the plaintiff to introduce the plea of guilty as evidence in the trial of the civil action, the affidavit or a copy thereof, should be first introduced ; then it should be shown that the affidavit was read to the defendant, or that he was correctly informed of its contents, and that he entered a plea of guilty to the charge. To permit the magistrate to testify that the defendant was arrested and brought before him, and that he entered a plea of guilty, without showing the charge to which he so plead, is error.
    4. If neither the affidavit nor a copy thereof can be produced, secondary evidence of its contents may be received.
    (Decided January 31, 1899.)
    Error to the Circuit Court of Cuyahoga county.
    Mary Kilbane, defendant in error, filed her petition in the court of common pleas of Cuyahoga county against Patrick Heeney, plaintiff in error, as follows:

      “On or about the twenty-fifth day of December, 1893, at the city of Cleveland in said county, in a certain discourse which said defendant then and there had of and concerning said plaintiff, and in the presence and hearing of divers good people as well as in the presence of the plaintiff, the defendant falsely, unlawfully, wickedly and maliciously spoke and published of and concerning said plaintiff, the false, scandalous and malicious words following, viz.:
    “You,” meaning said plaintiff, “are the Swede’s whore.” Meaning thereby, that said plaintiff was and had been a whore for a certain Swede, referred to. “I, myself, pulled him off from you.” Meaning thereby, that he, said defendant, had himself detected and interrupted her in her adultery.
    In said conversation the defendant repeated the slanderous words aforesaid many times, to the end that they might be clearly understood, remembered and believed by the large assemblage of persons then and there assembled. And they were spoken, as aforesaid, at the time and place above given, without any provocation on the part of said plaintiff; said defendant there and then well knowing that his declarations aforesaid were false and untrue; but they were spoken with the design and purpose of injuring plaintiff in her good name and reputation, and of vexing and scandalizing her,and of blasting* her character, and that she has been damaged thereby, in the sum of ten thousand dollars, for which sum she asks a judgment against defendant.”
    The answer was a general denial.
    Mary Kilbane is a relative of the wife of plaintiff in error and he assisted her in reaching Cleveland from Ireland. She resided in his family until she became the wife of Michael Kilbane, and after the marriage there were frequent and violent quarrels between Mary and her husband, and the plaintiff in error. At the date mentioned in the petition plaintiff in error, after a fierce quarrel with Mary and her husband, ejected them from his saloon, and thereupon she threw stones at him and at his saloon, and he threw stones at her, and during this violent quarrel which drew together a large concourse of people of that neighborhood, the words charged in the petition are alleged to have been spoken by him of and concerning her, in a loud, angry and boisterous manner, in the presence of the people so assembled, as well as in the presence of the plaintiff below. The police appeared upon the scene and arrested him as well as her, and upon a hearing both were discharged. It was claimed by her counsel upon the trial that she caused his arrest a few days therafter before J. C. Poe, a justice of the peace, for verbal slander, upon an affidavit sworn out by her, and that he plead guilty to the charge, and the intimation is that the verbal slander charged in the affidavit is the same as the words alleged to have been spoken as averred in the petition.
    The jury returned a verdict in her favor for $1,200. A motion for a new trial was overruled and judgment entered on the verdict, to all of which he, by his counsel, excepted. The circuit court affirmed the judgment, and thereupon he filed his petition in error in this court, seeking to reverse the judgments below:

      Foran <& MoTigue and J. P. Dawley, for plaintiff in error.
    We claim that every fact necessary to prove a cause of action or defense must be alleged and set forth in the petition, the same now as before the adoption of the code. 1 W. L. M., 102; 2 Dec. Re., 24; 3 Gaz., 66; 2 D., 52.
    The testimony was clearly at variance with the allegations in the' petition. The office of a pleading is to inform the court and the parties of the facts in issue: The court that it may declare the law; the parties, that they may know what to meet by their proofs. Hill v. Mendenhall, 21 Wall., 455; section 5060 Revised Statutes.
    Although it is held that a petition will be construed according to the ordinary meaning of language, that meaning must conform to the proof. 10 Ohio St., 621; 27 Ohio St., 159.
    In all cases where the alleged defamatory words, whether spoken, written or otherwise expressed,' do not clearly in themselves convey the meaning the plaintiff would assign to them, or where they are ambiguous or equivocal and require explanation by reference to some outside or extrinsic matter to show that they are actionable, it must be expressly stated that such matter existed and that the defamation related thereto. Allegations of this character are what are called the inducement or statement of extrinsic matter. Newell on Slander and Libel, second edition, page 600, Ghitty’s Pleading, 14th American edition, 400; Newell v. Howe, 31 Minn., 235; 17 N. W. Rep., 283; Bloss Toby, 2 Pick. (Mass.), 320; Newell on Slander and Libel, p. 320; Stewart v. Wilson, 23 Minn., 449; Merritt v. Dearth, 48 Vt., 65.
    The extraneous facts necessary to be proven to give the alleged slanderous words a direct and positive meaning, must be averred in a traversable form, with a proper colloquium or inducement. Newell on Slander and Libel, section 21, p. 607; 147 Mass., 438; 18 N. E. Rep., 214; 144 Mass., 38; Greenleaf on Evidence, 15th edition, Yol. 2, section 413.
    In the petition, the alleged slanderous words are given in the English language.
    It has been held in numerous cases, that in actions for defamation, if the words alleged and claimed to have been spoken, upon which the action is predicated, are in a foreign language, the identical words must be set out in the language in which they were spoken or published, and a translation thereof, into the English language be given. Warmouth v. Kramer, 3 Wend. (N. Y.), 394; Pelzer v. Benish, 67 Wis., 291; 30 N. W. Rep., 366; 12 Ind., 453; 61 Wis., 626; 21 N. W. Rep., 799; Zenobio v. Axtell, 6 T. R., 162; 3 M. & S., 116; Newell on Slander and Libel, pp. 277 and 637.
    It is a well established rule that it is error sufficient to reverse a judgment, for the trial court to suffer counsel, against objection, to state facts pertinent to the issue, which facts are not in evidence, or to comment upon facts calculated to prejudice, which have no bearing, whatever, upon the issues, and evidence of which would have been ruled out, or to assume arguendo, such facts to be in the case, when they are not. 44 Wis., 282; 64 N. H., 27; 66 Mo., 588; 126 Ill., 150; 75 Ala., 466; 66 Me., 564; Vol. 2, Ency. Pl. and Prac., 727.
    We maintain that the law of the state of Ohio, and of all the states of the Union, substantially is, that exemplary damages can only be awarded where express malice is proven, and that express malice cannot be inferred from the fact, alone, that the words spoken are false and injurious. Wright’s Reports, 101 and 121; 2 Gaz., 33; 5W. L. M., 184; 2 Dec. Re., 735; 4 Ohio St., 283; 3 W. L. M., 100; 2 Dec. Re., 440; D., 487; 32 Wis., 327; 17 N. W. Rep., 672; Seaton v. Cordrap, Wright’s Reports, 101; Stevens v. Handley, Wright’s Reports, 122 ; 17 N. N. Rep., 672.
    * Kerruish, Chapman & Kerrwish, for defendant in error.
    ' The words charged in petition are actionable per se under the laws of Ohio. For the speaking of words actionable per se, exemplary damages may be given, although actual malice is not proved. 13 Vol., Amer. & Eng. Encyl. of Law, 1 edition, p. 434, note 2; Wood v. Hilbish, 23 Mo. App., 389.
    There can be no question but that such words so spoken of defendant in error entitle her to exemplary damages. Hayner v. Cowden, 21 Ohio St., 292.
    The violence of the defendant’s language, the nature of the imputation conveyed, and the fact that the defamation was deliberate and malicious will, of course, aggravate damages. 13 Vol., Amer. & Eng. Encyl. of Law, 1 ed., p. 438.
   Burket, J.

Upon the trial the plaintiff below when a witness upon the stand, after testifying to the speaking of the words by him, and the manner in which they were spoken, testified as follows :

“Q. Well, was there a Swede? A. Yes, he was boarding at his house. Q. ■ What .is his name? A. His name is Charlie Masters. Q. Did you know him ? A. Y es. Q. Was he in the neighborhood there? A. He was boarding at Mr. Heeney’s house. Q. You may state whether you had anything to do with that Swede? A. No, sir ; I did never have nothing- to do with any one. Q. You may state whether any of the persons that' were there that day when he talked this language, knew that the Swede had been at his house? A. Yes.” To each of these questions the defendant below objected. The objections were all overruled and exceptions taken, and the admission of this evidence under the pleadings constitutes the first assignment of error.

It is urged by plaintiff in error that this testimony gave a slanderous import to the words, which was derived from extrinsic facts, and that if she desired the benefit of such facts she should have pleaded them so as to inform the defendant below what he would be expected to meet on the trial.

When the plaintiff in a slander suit desires to broaden and intensify the meaning of the words spoken by connecting them with extrinsic facts known to the speaker and to those who heard the words spoken, such extrinsic facts should be averred in the petition; and if the petition in this case had been as counsel for. plaintiff in error assume it in the argument to be, the evidence in question would clearly be incompetent. The petition on this point is as follows: “You, meaning said plaintiff, are the Swede’s whore. Meaning thereby, that said plaintiff was and had been a whore for a certain Swede, referred to. ’ ’

Extrinsic evidence that there was a certain Swede who was referred to by defendant below in what he said, and that she was his whore is here averred. In the absence of a motion to make this averment in the petition more specific and certain, the evidence in question was properly received. The evidence so received and objected to tended to prove this averment in the petition, and if he desired to have' the extrinsic facts more fully set out, he should have made a motion to that effect.

In the next place it is claimed by counsel for plaintiff in error that the evidence clearly shows that the words spoken by defendant below were spoken in the Irish language, and that as they are set up in the petition in the English language only, there can be no recovery.

After the plaintiff below and her witnesses had testified to the speaking of the words charged in the petition, without saying anything as to the language in which the words were spoken, the defendant below introduced some evidence to the effect that they were scolding and using the Irish language and one thing another; that they were talking Irish; that they talked in Irish and English ; that they mixed up the English with the Irish ; but none of those witnesses could tell what was said in either language.

Upon this state of the testimony the court charged the jury upon that subject as follows:

‘ ‘ The words charged are charged to have been spoken in the English language. So that, to entitle the plaintiff to recover in this action it must appear that these words were spoken in the English tongue. If spoken in a foreign tongue, there can be no recovery in the petition in this case, for it is not claimed they were spoken In a foreign language, and no translation is given. It is a case in which it is charged that these words were spoken in the English language, and to entitle the plaintiff to recover, the proof must satisfy you that they were spoken in the English tongue.”

“ By Mr. Kerruish: We ask the court to say to the jury that there being- no presumption that the words were spoken in any foreign tongue, there being no statement to the effect that they were spoken in a foreign tongue, the burden of establishing the fact that they were spoken in a foreign tongue is upon the defendant.

By the Court :

(as it further charged.)

I think there is no presumption at all that the words were spoken in a foreign tongue. It is a question of evidence. The presumption, I think, is that they were spoken in the English tongue; and in the absence of proof to the contrary, the jury would be justified in assuming that the words were spoken in the English tongue, if spoken at all.”

There was no error in this part of the charge. The words are set out in the petition in the English language. The testimony of the plaintiff below and her witnesses as to the speaking of the' words, and as to the quarreling between the parties on that occasion, was in English without any suggestion as to any other language. This is an English speaking nation, and our courts and schools use that language, and the natural presumption is that English was used until the contrary is made to appear. Whether the contrary was made to appear is a question of fact for the jury, to be determined from the evidence, and in the absence of evidence to the contrary, the presumption would be that the words were spoken in English. No witness states that the words were spoken in Irish, and there was no testimony tending to prove that they were so spoken. As some of the witnesses say that they were scolding in Irish, and mixed up the English and Irish, the jury might guess that the words, if spoken at all, were spoken in Irish, but there was no proof to the effect that the words were spoken in the Irish language.

Another assignment of error is as to the admission of certain testimony. The defendant below testified in his own behalf on the trial, and on cross-examination he was asked whether he was not arrested before Squire Poe for the transactions of that day, and he said he was. He was then asked whether he was not arrested for speaking the words charged in the petition, and whether he did not come in and plead guilty and say that he spoke those words and pay his 'fine and costs, to which he answered, “No, sir.” He further testified on cross-examination that they were both arrested in police court for the disturbance and were discharged, and he claimed that when he was brought before Squire Poe he was not informed and did not know that he was arrested for speak, ing the words charged in the petition, and that he did not plead guilty to speaking those words.

Thereupon plaintiff below called T. J. Rose, who had acted as clerk to Squire Poe, and Mr. Rose brought Mr. Poe’s criminal docket into court, and after identifying the same, counsel said to him: “Turn to page 244 and read that whole thing from beginning to end.” Objection was madé, and no answer was given. And there was nothing developed showing what was in the docket at page 244.

Thereupon Squire Poe was called as a witness by the plaintiff below and his attention called to page 214 of the docket, and he was asked to refresh his recollection and state whether he saw the warrant in that case, and he said he did; but there was no evidence offered to show what ease he looked at to refresh his memory, or what case appeared on page 214. He was then asked the following question: “Q. You may state whether this'man, the defendant in that ease, was made aware of what he was charged with. ” Counsel for defendant below objected to this question. The objection was overruled and exceptions taken. The examination then proceeded as follows:

“Q. By Mr. Kerruish: With your indistinct recollection refreshed, as it may be by this record, you may state whether there was made known to this defendant, and whether he was apprised of what he was charged with ? A. He was. Q. You may state whether he said he was guilty of using these words. Refresh your recollection by what is at the bottom of that docket. A. I think so. I think a waiver was written on the back of the envelope. Q. Explain what that waiver is? A. It was something after this form: T hereby waive trial by jury and enter plea of guilty to the charge herein.’ Objected to. (Answer continued.) That’s always the entry where they plead guilty and sign the waiver. To which answer defendant objected, and moved the court to take the same from the consideration of the jury which motion was sustained. Q. You may state whether it was made known to him what he was charged with and whether he said he was guilty afterward. To which question defendant objected, which objection was overruled, to which ruling of the court defendant then and there excepted. A. My recollection of it is we had some talk, and Heeney wanted to get out of it the cheapest way possible, and signified his willingness to sign a waiver after its being explained to him, and pleaded guilty and paid the costs. Q. What did he say in regard to being guilty or not guilty ? A. I don’t remember that he said anything more than what he signed. Q. Did this waiver say‘I am guilty ? ’ A. Yes. Q. And he paid the costs thereupon, as is stated there? A. I think I told him I could not figure the costs there, and he paid them at the office.”

There is no evidence tending- to prove that the charge against Mr. Heeney before Squire Poe was for speaking the words charged in the petition. Mr. Poe says that Mr. Heeney plead guilty, but fails to state to what charge the plea was entered. The affidavit was not offered in evidence, neither was the entry thereof on the docket, nor a copy thereof; and yet from the evidence introduced over the objection of the defendant below, the jury would take it that he plead guilty to a charge for speaking the words set out in the petition.

The best evidence as to what the charge against Mr. Heeney before Squire Poe was, is the affidavit, and that should have been produced, and if it could not be found then secondary evidence of its contents could be offered, and then it should be shown that the affidavit was read to him, or that he was informed of the charge, and that, having knowledge of the charge, he said he was guilty, or words to that effect.

The evidence shows that he pleaded guilty to some charge before Squire Poe and signed a waiver and paid the costs, but the nature of the charge is not disclosed by any witness except himself, and he says it was not for speaking those words, but for something growing out of that day’s transactions — disturbance, as he calls it.

The admission of this evidence as to pleading guilty to a charge before Squire Poe, without showing that the charge was for speaking those words, was prejudicial error, as the jury would naturally infer that he plead guilty to a charge for the speaking of the words in question.

The record does not disclose the action taken by the court as to misconduct of counsel for plaintiff below, and therefore it must be presumed that the court discharged its full duty. The Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio St., 77.

There is no error in the charge of the court as to damages, or exemplary damages.

For the error in the admission of testimony as to the plea of guilty as above indicated, the judgment of the circuit court, and of the court of common pleas will be reversed, and the cause remanded for a new trial.

Judgment reversed.


author: Williams, J.

text:
    The Jung Brewing Company v. Talbot, Treasurer, etc.

      Tax laid on liquor business — Manufacturer carrying on btisiness of selling elsewhere than at the factory — Selling and delivering to customers is subject to tax, when — Section 4864-9 Revised Statutes.

    3. A manufacturer of intoxicating liquors who carries on the business of selling them elsewhere than at the manufactory, is engaged in the traffic within the purview of section 4364-9, of the Revised Statutes, and subject to the tax thereby imposed.
    2. It is not essential to a valid imposition of the tax that the traffic be carried on in a building or structure, or fixed place of business. Selling and delivering the liquors to customers from a vehicle provided for that purpose is a method of carrying on the business that is subject to the tax, unless it is done in connection with, and as part of a traffic in which the proprietor is engaged on which he has paid the tax.
    3. When the traffic is so carried on by the sale and delivery from wagons as a separate and independent business, and the liquors are supplied from a store house where they are kept on hand for sale in that manner, in charge of a local agent, the store house may properly be regarded as the seller’s place of business. Hanson v. Luce, and Monaghan v. Luce, 50 Ohio St., 440, distinguished.
    (Decided January 31, 1899.)
    Error to the Circuit Court of Champaign county.
    The action was brought to enjoin the collection of a tax assessed, against the Jung Brewing Company, for the year 1897, for carrying on the business of trafficking in intoxicating liquors in Champaign county. Final judgment was rendered against the plaintiff on general demurrer to the petition, and to the affirmance of that judgment by the circuit court error is prosecuted here. The case made by the petition is, in substance, that the plaintiff who owned and operated a brewery located in the city of Cincinnati, also maintained a cold storage room in the city of Urbana where beer shipped from the brewery was received and kept on hand ready for sale and delivery to customers in the latter city, from time to time as they might order. The sales were not made directly at the storage room, but were made by agents and employees of the plaintiff who drove wagons for that purpose which were supplied with beer in the keg from the storage room. The drivers of these wagons made sales by the keg to the retail dealers and delivered the beer to them from the wagons. When a wagon was not supplied with the quantity required to fill an order, it was obtained by the driver from the storage room and then delivered. No sale was made of any quantity less than one gallon; and the plaintiff was not engaged in the sale of liquors in Champaign county, otherwise than as above stated. The county auditor regarding that method of business as trafficking in intoxicating liquors assessed the tax in question and placed it in the hands of the county treasurer for collection.

      L. D. Johnson, and Ucvrmon, Colston, Goldsmith dj lloadley, for plaintiff in error.

      Waite & Deaton, for defendant in error.
   Williams, J.

The statute under which the tax was laid, provides that: “Upon the business of trafficking in spirituous, vinous, malt or any intoxicating liquors, there shall be assessed, yearly, and shall be paid into the county treasury, ■ as hereinafter provided, by every person, corporation or co-partnership engaged therein, and for each place where such business is carried on by or for such person, corporation or co-partnership, the sum of three hundred and fifty dollars.” This is now section 4364-9 of the Revised Statutes. It is provided by section 4364-16 that: “The phrase, ‘trafficking in intoxicating liquors,’ as used in this act, means the buying or procuring- and selling of intoxicating liquors, otherwise than upon prescription issued in g-ood faith by reputable physicians in active practice, or for exclusively known mechanical, pharmaceutical or sacramental purposes, but such phrase does not include the manufacture of intoxicating liquors from the raw material, and the sale thereof at the manufactory, by the manufacturer of the same, in quantities of one gallon or more at any one time.”

One contention of the plaintiff in error is, that it is not subject to the tax authorized by the statute because the liquors sold were of its own manufacture, and the sales were made only in quantities of one gallon and upward. It is not alleged, however, nor is it claimed the sales were made at the manufactory. It appears they were not. As the statute formerly stood manufacturers were exempt from the tax without regard to the place or places where they sold their product. But since the amendment of March 21, 1887(84 O. L., 224) they are so exempt only when they confine their business to selling at the manufactory. By that amendment the words “at the manufactory” were inserted as they now appear in section 4364-16, above quoted, and they are so far restrictive of the class of exemptions from the tax as they existed prior to the amendment, that thereafter manufacturers who should engage in the business of selling their liquors elsewhere than at the manufactory, become liable to the tax like other dealers. - If that was not the purpose and effect of the amendment it had none whatever.

It is further contended, that as the beer sold was manufactured by the plaintiff, its sale did not constitute a traffic within the statutory definition. The business of trafficking in intoxicating liquors upon which the tax may be assessed, as defined by the statute, means the buying or procuring and selling of such liquors, and does not, it is claimed, include sales by the manufacturer of them, because he neither buys nor procures, but produces them. ' It seems clear, however, the word procure was not used in the statute in that restricted sense. After defining the phrase trafficking in intoxicating liquors to mean the “buying or procuring and selling,” etc., the statute, in express terms, excludes manufacturers in certain cases from the definition, which is sufficiently indicative of the legislative understanding that such express exclusion was necessary to relieve manufacturers of the tax; for, if they were not within the definition, the excepting clause was unnecessary. And, moreover, the excepting clause does not exclude manufacturers in all instances, but only in cases where their sales are made at the manufactory, in quantities of one gallon or more at one time; and, it is evident this clause- would be rendered wholly nugatory if it were held the manufacturer was not within the statute because he produced the liquor sold as distinguished from procuring them; for then, he might sell anywhere and in any quantity without being liable for the tax. In general use the word procure means to obtain in any way, and that it was employed in that sense in this statute, seems clear from all of its provisions.

The remaining ground on which the validity of the tax is called in question is, that the plaintiff did not carry on the traffic at any particular place of business in Champaign county. The claim that a fixed place of business is essential to a valid imposition of the tax authorized by the statute is based on that provision which requires a tax to be paid by every person engaged in the traffic for each place where the business is carried on by or for him, and those which make the tax a lien on the real estate where the business is conducted, and authorize its collection by the enforcement of the lien or by levy on the bar fixtures, etc. The legislature, no doubt, had in view the customary mode of carrying on the traffic, in building-s and rooms, supplied with bar and other convenient fixtures and furniture, and deemed it proper to secure the tax in such cases in the manner provided. But those are not the only methods of enforcing the collection of the tax; nor, is the tax limited to the traffic carried on in such places or in the ordinary-way. On the contrary, the statute imposes the tax on the business without regard to the method by which it is conducted or the situation of the seller; its purpose being- to confine the traffic to those who pay the tax. The selling of intoxicating liquors from a wagon equipped as a saloon, drawn from place to place, is as certainly within the purview of the statute, as is the traffic carried on in elegantly fitted rooms; and so is the selling from any vehicle when it is not done as part of a business on which the proprietor pays the required 'tax. But, was not the traffic carried on by the plaintiff at a place in the city of Urbana? The beer was shipped there and placed in the storage room, where it was kept on hand for sale by local agents. If customers had made their purchases or received the property at the building, it would undoubtedly have been a place of traffic. Instead of conducting the business in that way the agents who had charge of the building and contents obtained orders from the customers which they filled by hauling the beer from the building to the customers. That was merely a matter of convenience to the purchaser, or inducement to buy. The building where the property sold was situated, and from which it was delivered, was, for every practical, purpose the place where the business was carried on. The substantial distinction between this case and the cases of Hanson v. Luce and Monaghan v. Luce, 50 Ohio St., 440, is, that in the latter cases the storage room was used in connection with, and as part of the wholesale and retail traffic carried on by the proprietor at his saloon where all the business was done, and for which he had paid the tax. In such a case, it was held he was not subject to a separate tax on account of the use made of the storage room. Here, the plaintiff clearly carried on a separate and independent business of trafficking in intoxicating liquors in Champaign county, for which no tax had been paid, and is liable, we think, for the tax which it seeks to have enjoined.

Judgment affirmed.