author: Minshall, C. J.

text:
    Hemm v. Williamson.

      Water-crqft — Sections 5880 and 5882, Revised Statutes, construed.

    One who simply holds the legal title to a water-craft as security for the amount due him upon the sale of it, having neither the possession nor control of the craft, is not an “ owner ” within the meaning of sections 5880 and 5882 Revised Statutes; and is, therefore, not liable for supplies furnished it.
    Decided June 27, 1890.)
    Error to the Circuit Court of Miami county.
    The plaintiff below, Williamson, brought suit in the court of common pleas against the defendant Hemm, to recover the value of certain supplies, amounting to some $325, claimed to have been furnished by him to the canal-boat “ Pocahontas,” of which, he averred, that Hemm was the owner, the supplies having been furnished to the boat on the orders of the captain during the years 1883 and 1884. Hemm answered, denying that he was the owner of the boat at the timé the supplies were furnished, averring that on March 9, 1882, he sold the boat to one Hamilton, who then took exclusive possession of it, and continued to do so. He further alleges that on March 9, 1882, after he had sold the boat, he and Hamilton entered into a written agreement, of which the following is a copy:
    “ This agreement between Frank Hemm, of Miami county, Ohio, and James Hamilton, of the same county and state, witnesseth: That said Hemm has this day, March 9, 1882, bought of Gr. Volney Dorsey the canal-boat Pocahontas, now on the Miami and Erie Canal; also three mules and the harness, for three hundred dollars, which sum said Hamilton agrees to pay to said Hemm within the space of three years from this date. And it is hereby agreed if said sum is so repaid, then the boat, mules, and harness shall belong to Hamilton ,- but, if not so paid, then the. above property belongs to Hemm. And in case Hamilton does not continue in the quarry of said Hemm for the term of two years, then whenever his control therein ceases he shall either pay what is still due on said property, or the property shall belong to Hemm.”
    The plaintiff replied admitting the execution of the agreement, but averred that Hamilton never complied with the terms of the agreement; and that the boat continued to be uséd for the mutual benefit of both the parties, in boating stone from the quarry owned by Hemm.
    The case was tried upon the issues to a jury, which found for the plaintiff in the amount of his claim. A motion for a new trial was made on the ground, among other things, that the court erred in its charge to the jury and in refusing, to give certain instructions asked by the defendant.
    The court charged the jury as follows:
    “ The matters in dispute between the parties are these: Was the defendant the owner of the boat at the time plaintiff’s bill was contracted, as claimed by him ? By the terms of the contract of March 9, 1882, the defendant became the owner of the boat Pocahontas, and would so remain until the terms of that contract had been fulfilled by J ames Hamilton paying the amount therein stipulated, or it being waived by Hemm or otherwise settled by him, because such contract is not a chattel mortgage, but by its terms retains the title in Hemm, defendant, until James Hamilton performs his obligations under it, or .is relieved therefrom by some arrangement with Hemm, defendant. If such performance of Hamilton of said contract on his part or other release took place after plaintiff’s bill was furnished, it will not avail the defendant so as to defeat a recovery of plaintiff.
    “If, however, you find that Hemm, defendant, did not, when he'entered into the said contract of March 9,1882, understand its terms and provisions, he would not become the owner, but if he knew what was in said contract, although ignorant of its effect in law, he would become the owner in law. In other words, if the defendant, Hemm, knew the terms of the said contract and made it in the terms he did, that by such means he would secure his claim, he became in law such owner of the boat as to make him liable as an owner by the provisions of section 5882, Revised Statutes. If you find Hemm, defendant, was such owner and liable as such, you will nest inquire, did plaintiff furnish the things named in his petition and account therein set forth, at or about time named, and while the defendant Hemm was the owner, and are or were they worth amount claimed ? If so, then further, was such bill or account furnished for the use and running of the boat Pocahontas ? and if so, was such boat during such time navigating the waters within or bordering on the state of Ohio ? If these issues are all found in favor of plaintiff, he can recover, but as I have said, the burden is on him to establish them by a preponderance of the evidence.”
    The defendant requested the court to instruct the jury as follows :
    “ 1. If the defendant owned the boat but had no control of it, or of the parties who were running it and who contracted the debt to plaintiff, and did not in any way aid or assist in the control, or equipment, or furnishing, or running said boat from time he sold it to Hamilton under the contract in evidence in this case, and did not contract the said debt himself, nor authorize any one to do so for him he is not liable in this action.”
    Also as follows:
    “4. If defendant had sold the boat to Hamilton under the contract in evidence in this cause, but had allowed Hamilton to take and Hamilton had taken possession of the boat and used and controlled it as owner free from any assistance or control of defendant under said contract or otherwise, after the sale to Hamilton under said contract, though the purchase price had not been fully paid by Hamilton when plaintiff’s claim was contracted, yet the defendant is not liable without other sufficient grounds of recovery.”
    And, also as follows:
    “ 9. If defendant was owner of the boat, but it was hired to and under the absolute control and custody of Hamilton, and Hamilton controlled and ran the boat, and appointed and employed all the persons engaged in running the boat as his agents, and not the agents of defendant, free from any control by defendant during the time plaintiff’s claim was being contracted, and defendant did not contract the debt or incur the liability for said claim except by the acts of said agents of said Hamilton, defendant is not liable because of being such owner.”
    The court refused to give either of these instructions, to which the defendant at the time excepted; and also to the charge as given.
    The motion for a new trial having been overruled and exceptions noted, as appears from the bill of exceptions, judgment was entered upon the verdict, which was affirmed by the circuit court.

      A. L. Marshall, for plaintiff in error.
    No right is expressly reserved by the contract, and it, at most, only provides that on default by Hamilton and at the end of the three years specified then Hemm might .divest Hamilton of ownership. And it is quite different from the contracts and the principle of the case in 23 Ohio St., 8; 28 Ohio St., 636; 40 Ohio St., 673; 18 Cin. Law Bul., 102.
    There is no common law liability against the general owner in such case. The owner intended to be liable by the statute is “ the owner who contracted the debt.” Sections 5880, et seq. Revised Statutes; 2 Ohio St., 31; 10 Ohio St., 583; 12 Ohio, 342; 15 Ohio, 590, 591; 13 Ohio St., 252, 262; 34 Ohio St., 286; 3 Kent Com., 12th ed., 134 and note d., 138 and note 1.

      M. H. W. D. Jones, for defendant in error.
    The material and only question in tbe case, in our judgment, is, was Hemm, at the time the supplies were furnished, the owner of the boat ? If he was, he was liable, and the judgment of the common pleas should stand. 40 Ohio St.. 670, 673; Cincinnati Law Bulletin Aug. 15, 1887, page 102 23 Ohio St., 8; 28 Ohio St., 636, 637.
    This is purely a statutory liability. The “ owner ” of the boat, or the master shall be liable. Under these decisions there can be no question but that Hemm was the “ owner ” of the boat. Either is liable. Section 5882, Revised Statutes.
   Minshall, C. J.

The question in this case depends upon the construction that should be given to the word “ owner ” as used in the water-craft law^of this state. By the provisions of this law, § 5880, Revised Statutes, any water-craft, navigating the waters within, or bordering upon, the state, is made liable “ for all debts contracted upon account thereof by the master, owner, steward, consignee, or other agent, for materials, supplies,” etc., furnished the same, and the debts so contracted are declared a lien thereon.

And by section 5882, it is provided that any person having a demand under the former section, “ may proceed against the owner of the craft, or the master who contracted the debt, or against the craft itself.” According to the charge of the court, under these sections, one who simply holds the legal title to a craft as security for the amount due him upon the .sale of it, is an owner, and liable for debts contracted by the purchaser, who has the exclusive possession and control of the boat. If this be so, it is not only anomalous but contrary to the general principles of justice. No such liability attaches to the mortgagee of real or personal property under the same circumstances, nor in any case where the vendor retains the title to the property as a security for the payment of the purchase-money by the vendee. Then why should it be so, in á similar case, arising under thé water-craft law ? No reason is perceived for it, resting upon any principle of justice or policy; nor is it required by the words of the statute. The liability created against the craft by section 5880, is for debts contracted on its account for material and supplies by'the “owner,” or his agents; and it is this liability which, by section 5882, may be enforced by a suit against the “owner,” or against the craft by a proceeding in rem. It seems manifest from the reason and language of the statute, that what is here meant by the word “ owner,” is the person who has the possession and control of the boat, and runs and operates it pro hac vice in his own interest. He may be the hirer of it, or the mortgagor in possession and the owner of it as against all the world except fhe mortgagee, of the vendee in possession, and also a like owner except against the vendor who retains the legal title as a simple security. It is not necessary that he should be the absolute, nor the legal owner; it is sufficient if he is in possession and has the equitable title to the property in the boat. The fact that he may be deprived of his possession by the assertion of the legal title, can in no manner affect the reason and policy of the water-craft law, so long as this power is not asserted, and he retains the possession and control of his boat.

This is according to the rule and practice in admiralty from which the principal provisions contained in our watercraft law were taken. It seems there well settled that a mortgagee out of possession is not liable for supplies furnished the vessel; nor is the owner who has let his ship by a charter-party, the charterer being, in such case, regarded as owner pro hac vice and liable as such. 3 Kent Com., 11 ed., 190-195; Abbott on Shipping, 43-52; Parsons on Shipping, 129.

If then by the terms of the contract between Hemm and Hamilton the legal title remained, as the court charged, in Hemm until payment by Hamilton, still as he so held it simply as a security, he would not be liable for supplies furnished the boat on the orders of the captain, having parted with the possession to Hamilton, who then ran and operated the boat on his own account. “ Where,” says Chancellor Kent, “ the contract of sale is made, and possession delivered, the circumstance that the naked legal title remains in the vendor for his security does not render him liable as owner on the contracts, or for the conduct of the master.” 3 Kent Com., 11 ed., 191. The court therefore erred in charging the jury as it did and in refusing to charge as requested, and for this reason

The judgments of both courts are reversed and cause remanded for a new trial.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The State ex rel. v. Wall et al.

      Cities — How those of one grade advanced to another.

    A city of the second class does not become a city of tbe first class by a simple increase in population; certain steps are required to be taken by the municipality before it can be advanced. These steps are prescribed in chapters 4 and 6, Division 2, Title 12, Part 1, Revised Statutes.
    (Decided June 28, 1890.)
    In Quo Warranto.

    On April 3,1890, the general assembly of the state passed an act entitled an act “To create a board of public works in and making certain changes in the government of cities of the first grade of the second class’; ” (87 Ohio. Laws 151,) and in pursuance of its provisions the defendants were appointed as such board for the city of Columbus by the Mayor thereof; and having duly qualified under the provisions of the law, are acting as such board for said city.
    It is claimed that Columbus is not a city of the grade and class designated by the statute, and that the act itself is unconstitutional and void for various reasons; and this proceeding is instituted to oust the defendants from the exercise of any of the powers and duties attempted to be conferred on them by the act.

      David K. Watson, Attorney General, Biohard A. Harrison, L. J. Qritchfield and Qyrus Huling, for the state.

      Paul Jones, City Solicitor, Florizel Smith, Assistant City Solicitor, Greo. B. OJcey, H. J. Booth and J. T. Holmes, for the defendants.
   By the Court.

After a careful consideration of the statutes regulating the organization of municipal corporations in this state, (Title 12, Division 2,) we are convinced that Columbus is a city of the first grade, second class. The present method of grading as well as classifying such corporations, was introduced by the revision of 1880. Prior to that time they had been classified as cities of the first and second class and villages ; Columbus being a city of the second class. Cities and villages are classified and graded by sections 1546,1547,1548. and 1549, Revised Statutes of 1880. These sections fixed the class and grade of each city then existing; but it was provided in section 1548 that “ existing corporations, organized as cities of the second class, shall remain such until they become cities of the first class; ” and their grades were then fixed as provided in that section. So that under the revision of 1880, Columbus being at the time an organized city .of the second class, remained such until it should become a city of the first class. Hence it is evident that a city of the second class does not become a city of the first class simply by an increase of population; for, if this were so, then the provision that existing cities of this class should remain such until they become cities of the first class, would be useless. Something more is required, and this is found in the provisions contained in chapters 4 and 6 of the above title and division of the Revised Statutes. • From these chapters it appears that the population of a city of the second class, whether ascertained by the federal census or by a census taken by the municipality, simply furnishes the ground for authority in such city to become a city of the first class by complying with their provisions. And unless such steps are taken, a city of the second class remains such under the provisions of section 1548, irrespective of the number of its population. It is not claimed that any such steps have been taken, and Columbus therefore, remains a city of the second class, and necessarily, a city of the first grade in that class; and will so remain until the requisite steps have been taken to advance it to a city of the first class.

Grave doubts may well be entertained as to the constitutionality of this method of classifying cities for the purpose of general legislation. But it has received the sanction of this court in repeated decisions heretofore made; and in view of this fact, and the rule that forbids a court to declare a law enacted by the legislature as unconstitutional, unless clearly convinced that it is so, we do not feel warranted in doing so in this instance.

All the other questions raised in the case, have, as we think, been fully determined in favor of the validity of the law, by the previous decisions of this court.

Writ refused and petition dismissed.


text:
    MinYoung v. MinYoung et al.

      Divorce — Alimony—What property liable to lien for — Section 5699, Revised Statutes, construed.

    An estate in remainder in real and personal property, which, remainder is vested as to interest though contingent as to amount, is real and personal property within the meaning of section 5699, Revised Statutes; and where, in a proceeding by a wife against her husband, a decree of divorce is granted and a case is made warranting the allowance of alimony, it is not error for the court to allow to the plaintiff alimony and adjudge that the same be made a lien upon such remainder held by the husband in such real estate.
    (Decided Sept. 30, 1890.)
    Error to the Circuit Court of Trumbull coúnty.

      F. JE. HuteMns, for plaintiff in error.

      Gf, P. Hunter, for defendant in error.
   By the Court.

One' William MinYoung died testate, leaving Delila MinYoung, his widow, and real and personal property of the value of 125,000 to 180,000. -He was the father of the defendant in error, William H. MinYoung, and of Mrs. Emma Predmore, both of whom survived him. A copy of the will is as follows :

“ 1. It is my desire that all of my just debts and funeral expenses shall be paid.

“ 2. I devise and bequeath to my wife Delila MinYoung, all of my remaining property of whatever kind real and personal, to be held and used by her as follows, to wit:

“She’ shall use for her own comfort and convenience, all that in her judgment is necessary. Out of said property she shall also support, educate and maintain our son William H. MinYoung until he arrives at the age of twenty-one years: all this is on the condition that said Delila shall remain my widow. In case she marries again then she shall have out of my estate just what the law allows to be given to her, and the remainder of my said property shall be equally divided between our children Emma Predmore and William H. MinYoung. In case either of our said children should be deceased leaving child or children, then such children shall be entitled to the same share that their parent would be entitled .to receive if living.

“ In case my said wife shall remain my widow during her life-time she shall have complete control over said property, and what remains at the time of her decease shall be divided in the same manner to the child or children as provided for in the case of the marriage of my said wife,

“ 8. I do hereby nominate and appoint my wife executor of this my last will and testament. She shall not be required to give any bond to qualify her to act as such nor make any appraisement of my personal property nor any settlement with the court except upon condition that she shall re-marry; and I hereby fully authorize and empower her to sell any or all real estate and make a good and sufficient title thereto, as well as personal property without any intervention or control of any court whatever.

“ 4. I do hereby revoke all former wills by me made.

“ In witness whereof I hereunto set ray hand and seal this 22nd day of June, A. d. 1874.

“ William MinYoung. [Seal.] ”

The widow declined the trust as executrix, and an administrator with the will annexed was appointed.

The original action was brought by Lizzie A. MinYoung against her husband William H. MinYoung, seeking a divorce and for alimony, and asking that the same be charged upon the interest of William H. in the property devised by the will. The widow and the administrator were also made parties. At the trial the plaintiff obtained a decree of divorce, and for alimony in the sum of $2,500, which was declared a lien on the interest of William H. in and to the real estate described in her petition, subject to the right of the widow, and William H. was enjoined from conveying or incumbering his interest in the real or personal estate until the amount of the alimony should be paid.

Held: By the will the widow took a life interest and a life support in the property with the right to control it and to use both personal and real estate, including principal as well as interest and income, so far as may be reasonably necessary “ for her own comfort and convenience,” subject to the trust of supporting and educating her son until he should arrive at the age of twenty-one years. The children named took an estate in remainder to what may be left when this object shall have been accomplished, vested in interest though contingent as to amount.

2. Such estate in remainder was real and personal property of the husband within the meaning of section 5699 Revised Statutes, and it was not error to charge the decree for alimony upon such estate in remainder of the said William H., subject to the right of the widow.

Judgment affirmed.


author: Dickman, J.

text:
    Treasurer v. Bank.

      Constitutional Law — Taxation of Property of Unincorporated Banks.

    1. That part of section 2759, of the Revised Statutes, regulating returns for taxation of unincorporated banks and bankers, which provides that from the aggregate sum of the first five items therein enumerated, the county auditor shall deduct the aggregate sum of the fifth, sixth, seventh, and such portions of the eighth items as are by law exempt from taxation, is not repugnant to either section 2, or section 3, of article 12, of the constitution, except to the extent of including the entire third item among those from which the deduction is to be made.

      2. A deduction under section 2759, of the average amount of all deposits, and of the average amount of accounts payable, exclusive of current deposit accounts, from the average amount of notes and bills receivable, discounted or purchased in the course of business, by such unincorporated bank or banker, and considered good and collectible, would not be in conflict with either of the above named sections of the constitution; but, the same deduction from the average amount of cash and cash items in possession, would contravene section 2, of article 12, of the constitution.
    3. One part of a section of a statute may be void for want of conformity to the constitution, without affecting the validity of the remainder, unless, the objectionable and unobjectionable portions are essentially and inseparably connected in substance, or, are so interdependent, that the general assembly would not have enacted the one without the other.
    4. An unincorporated bank having returned its property for taxation to the county auditor upon a printed blank form furnished it by the auditor for that purpose, in which all its property subject to taxation and the value thereof, were truly stated under the items enumerated in section 2759, the auditor, after making the deductions required by that section and entering upon the duplicate for taxation the remainder thus obtained, may, under section 1038, of the Revised Statutes, while the duplicate is in the hands of the treasurer for collection, correct an error in the amount of the bank’s taxes upon the current duplicate, resulting from an erroneous deduction.
    (Decided October 28, 1890.)
    Error to tbe Circuit Court of Fayette county.
    Tbe original action was commenced by tbe treasurer of Fayette county, Ohio, plaintiff in error, in tbe Court of Common Pleas of Fayette county, against tbe People’s & Drovers’ Bank, the defendant in error. The defendant is an unincorporated banking association, and in the year 1885, and for several years prior and subsequent thereto, it carried on a general banking business in Washington C. H. in said county of Fayette. In May, 1885, tbe auditor of that county furnished tbe bank with a blank form, and required it to make out and return to him upon tbe same, for taxation, in pursuance of section 2759, of tbe Revised Statutes, as amended April 17, 1882, a statement of its assets for tbe year ending tbe first Monday of May, 1885. Tbe blank form was filled out by the defendant’s cashier, sworn to by him, and duly returned to the auditor, and is as follows:

      “UNINCORPORATED BANKS AND BANKERS.

      Return for taxation of Peopled Drovers’ Bank

    Located at Washington C. H., Ohio,
    Under provisions of amended section 2759 and 2759a Revised Statutes.
    TAX NOTICE

      For unincorporated Banks and Bankers.

    TO people’s & drovers’ bank:
    In pursuance of the provisions of sections 2758, 2759, 2760 and 2761 of the Revised Statutes, you are required to make out and return to me, under oath, on or before the second Monday of May, 188 , a statement of your assets as a banker or bankers, for the year ending the first Monday of May, 1885, in the following form: J. P. Robinson,
    Auditor of Fayette County, O.
    Dated May 9, 1885.
    STATEMENT.
    These averages are obtained by adding together the amounts of each item here specified, owned or standing on the bank books, on the first Monday of each month of the year ending on the first Monday of May in any year, and dividing the same by the number of months in the year. If business has been done for less than a year, the statement and division is made on the same principle for the number of months which have elapsed since its commencement, up to the first Monday of May, 188 .
    1. The average amount of all notes and bills receivable, discounted or purchased . . $278,951
    2. The average amount of all accounts receivable
    3. The average amount of cash and cash items in possession or transit .... 53,999
    Note. — “ Cash items mpossessionf are such items of cash whether owned by the bank or depositors, as ' are in the control of the bank: i. e., including such deposits as are not invested and reported under other heads.

      $26,289 4. The average amount of all kinds of stocks, bonds (including United States government bonds), or evidences of indebtedness, held as an investment, or in any way representing assets .
    8,600 5. The amount of real estate at its assessed value for taxation.......
    $362,839 Total of the five items. . • .
    $306,568 6. The average amount of all deposits
    39,0T0 7. The average amount of accounts payable, exclusive of current deposit accounts......
    20,488 8. The average amount of United States government and other securities that are exempt from taxation .
    8,600 Amount of fifth item
    Total of 5, 6, 7 and 8 items to be deducted from aggregate sum of first five items above ..... $374,726
    Balance of first eight items subject to taxation 000,000
    9. The true value in money of all furniture and other property not otherwise herein enumerated ....... 1,200
    Total amount subject to taxation 1,200
    The name and interest of each partner is as follows, to-wit:

      Washington C. JET., Ohio, May 4, 1885.
    (Here follow the names of the partners — their aggregate interest-being $193,800.)

      State of Ohio, Fayette County, ss.:

    I, R. A. Robinson, cashier, do solemnly swear that I am the principal manager of the banking house and business done at Washington C. H., in said county, under the name of People’s & Drovers’ Bank; that the several amounts of notes and bills and accounts receivable by said People’s & Drovers’ Bank, and of cash and cash items, bonds, stocks, and other evidences of indebtness, possessed or held by said People’s & Drovers’ Bank during the year ending the first Monday of May, A. d. 1885, are fully and correctly stated in the above statement, and that all the items of the above statement are true and just as therein set forth.
    R. A. Robinson, Cashier.

    Sworn to and suscribed before me, county auditor, in and for said county, this 20th day of June, A. d. 1885.
    (Official signature,) J. P. Robinson, County Auditor.”
    After the defendant had made the above return and statement to the auditor, the auditor deducted the aggregate sum of the fifth, sixth, seventh and eighth items from the aggregate sum of the first five items, and adding the remainder to the amount of item nine, entered the amount so obtained upon the duplicate for the year 1885, and taxes thereon were assessed and paid, the same as provided for other personal property assessed and taxed n the same placel
    The taxes so assessed and paid, were upon real estate and specific personal property (office fixtures) only, owned by the bank.
    Afterwards, and after the defendant had paid its taxes assessed as aforesaid, and while said duplicate was in the hands of the treasurer for collection, and upon due notice to the bank, and a hearing of the matter after the bank appeared before him in obedience to such notice, the auditor, claiming that the law authorizing the deduction of the fifth, sixth and seventh items in said statement of assets for taxation from the sum of the first five items in said statement, was unconstitutional and void, placed upon said duplicate the aggregate sum of the first, third and fourth items in said statement, viz.:
    First. — The average amount of all notes and bills receivable, discounted or purchased. . $273,951
    Third. — The average amount of cash or cash items in possession or transit. .... 53,999
    Fourth.-» — The average amount of all kinds of stocks, bonds (including United States government bonds), or evidences of indebtedness, held as an investment, or in any way representing assets..... ... 26,289
    $354,239

      And assessed that sum of $354,289, for the year 1885, as provided for other personal property assessed and taxed in the same place for that year, and left the same in the hands of the treasurer for collection. The bank refused to pay the assessed taxes, and the original action was brought to collect the amount of the taxes so assessed and placed upon the duplicate — judgment being asked for the sum of $9,493.60 for taxes,' together with 5 per cent penalty thereon.
    At the request of the parties, with a view of excepting to the decision of the court upon the question of law involved in the trial, the court of common pleas stated in writing its conclusions of fact, upon, the issues between the parties, separately from its conclusions of law. Upon the facts as admitted by the pleadings, and as stated by the court, and which 'are hereinbefore substantially set forth, the court was of opinion, and stated as its conclusion of law, that the plaintiff had no cause of action, and that his petition ought to be dismissed. Judgment was entered accordingly for the bank, and upon petition in error by the plaintiff, the circuit court affirmed the judgment of the court of common pleas. To reverse the judgments of the circuit court and of the court of common pleas, this proceeding is instituted.

      JR. A. Samson, S. B. Maynard, and B. O. Miller, Prosecuting Attorney, for plaintiff in error.
    1. That part of section 2759, Revised Statutes, which assumes to require county auditors, in levying taxes, yearly, upon unincorporated banks and bankers, to deduct the aggregate sum of (1) the amount of their deposits, (2) the average amount of their accounts, exclusive of current deposit accounts, and (3) the amount of their real estate at its assessed value, from the aggregate sum of (1) the average amount; of notes and bills receivable, discounted, or purchased, in the course of business, by such unincorporated banks or bankers, and considered good and collectible, (2) the average amount of their accounts receivable, (3) the average amount of their cash and cash items in possession or in transit, (4) the average amount of all kinds of stock, bonds,, or evidences of indebtedness, held by them as an investment, or in any way representing their assets, and (5) the amount of their real estate at its assessed value, — contravenes the 3d section of Article XII. of the constitution of this state, and is, therefore, void. Ellis & Morton v. Linck & Thomas, 3 Ohio St. 66; Exchange Bank of Columbus v. Hines, 3 Ohio St. 1; Latimer, Colburn & Lupton v. Morgan, Bowman et al., 6 Ohio St. 280; Champaign County Bank v. Smith, 7 Ohio St. 42.
    2. That part of section 2759, Revised Statutes, which assumes to permit and provide for deductions in levying taxes, annually, upon the notes and bills discounted or purchased, moneys loaned, and all other property, effects, or dues, of every description, of banks and bankers, (Art. XII., sec. 3,) may be treated as void, without affecting the validity of the remainder of the section. Exchange Bank of Columbus v. Hines, Treasurer, Ellis & Morton v. Linck & Thomas; before cited, Clark v. Ellis, 2 Blackf.; Fisher v. McBirr, 1 Gray 1, 21; Steele v. The State, 5 Blackf. 110; Tillman v. Cocke, 9 Baxter 429; Turner v. Commissioners, 27 Kan. 314; Reid v. Morton, 119 Ill. 118. The grounds and reasons upon which the tax law of April 13, 1852, was held to be valid in all its parts excepting the 10th section, are exactly applicable to this case, and must govern it. Shotwell v. Moore, 45 Ohio St. 632, 645, 646; Ellis Morton v. Linck & Thomas, 3 Ohio St. 66; Champaign County Bank v. Smith, 7 Ohio St. 42.
    3. If it should be held that the county auditor ought to have deducted the amount of the 8th item of the return of the property of the defendant in error for taxation, his failure to do so does not render the entire levy void, nor prevent a recovery by the treasurer for that part of the taxes assessed against the defendant in error which is legal. In an action to recover a judgment for taxes, a recovery may be had of a part which is found to be legal, if the court can ascertain, by computation, how much is legal. Allen v. Peoria R. R. Co., 44 Ill. 85; National Bank v. Kimball, 103 U. S. 732; State, Railroad Tax Cases, 92 U. S. 575.

      4. The county auditor had authority, and it was his duty, under section 1038 of the Revised Statutes, to correct the error in the amount of taxes assessed against the defendant in error upon the then current duplicate, resulting from the erroneous deduction from the taxable property of the defendant in error, as shown by their return of their taxable property to him for taxation, every fact necessary to enable him to make the correction appearing on the face of the return. Insurance Co. v. Cappellar, 38 Ohio St. 560; The State v. Commissioners, 31 Ohio St. 271; Section 1038 Revised Statutes. The Stark County Bank v. McGregor, auditor, etc., 6 Ohio St. 45; Latimer et al. v. Morgan et al., Id., 279, 280; Bank v. Smith, 7 Ohio St. 42.
    5. The determination of this cause involves only the question whether unincorporated banks and bankers are entitled, under the third section of article XII., of the constitution of this state, to make deductions from any of their property in returning the same for taxation. No question is presented as to the taxation of persons who are not bankers.

      J. J. Harper, for defendant in error.
    1. The contention of the plaintiff is, that that part of section 2759 of the Revised Statutes which requires the auditor to deduct certain items therein named from the aggregate sum of the first five items therein named, is unconstitutional and void; and that the auditor at his pleasure can so declare. This position, it is claimed, is. supported by the cases in the 3d Ohio State, of the Exchange Bank v. Hines, and Ellis & Morton v. Linck. We do not think' those cases support the position taken. Payne v. Williamson, 37 Ohio St. 125. In both the cases, relied upon by counsel for plaintiff, the attempt was made to deduct debts and liabilities from moneys and credits, under the authority of the 10th section of the act of 1852. The court in both cases decided that as the law then stood this could not be done. Property employed in the business of banking was to bear a burden ot taxation equal to that imposed upon other property — not less and certainly not more. If individuals may deduct their debts and liabilities from tbeir credits so may the banks. That is equality, and the constitution and the law undertake to provide for equality of taxation. Hines Case, 8 Ohio St. 21, 22, 23; Robinson v. Ward, 13 Ohio St. 296; Stark County Bank v. McGregor, 6 Ohio St. 46. The legislature has passed a law for ascertaining the value of property employed in banking. It is the scheme set forth in section 2759 of the Revised Statutes, as amended and supplemented in Yol. 79, Ohio Laws, page 109. Why is it not competent for the legislature to so enact ? Who shall question its power to ascertain the value of property employed in banking in this way ? We therefore submit that the objection made to section 2759 is not well taken.
    2. But if it were objectionable, as claimed, don’t the whole scheme fail ? Who can say that the legislature would have adopted the scheme in part only — such as the auditor thinks is valid — if the balance of the section is to be rejected? To hold as the auditor claims, would be, it seems to me, to hold that the auditor, or the court shall do what is clearly remitted to the legislature by the constitution — that is, to determine the method of ascertaining the value of property employed in banking. Section 10 of the tax law of 1852 did not interfere with the law in Section XIX. and XX. for ascertaining the value of property employed in banking. It stood as an independent section, in no way interfering with, the scheme for finding value. For the reasons above stated the supreme court held that section to be invalid. That could be done and yet leave as a consistent whole, the law for fixing value, as found in Sections XIX. and XX. But we think that the last clause of 2759 cannot be declared invalid and be stricken out without destroying the whole section, and thus leave us without any law for the taxation of unincorporated banks.
    3. Admitting the invalidity of the last clause of section 2759, it leaves for determination the question as to the power of the auditor to correct the difficulty. Can he do it ? Is it the correction of a mere clerical error or mistake ? Is it not rather a fundamental infirmity that courts only correct when clearly constrained to that course of action ? As to the power of the auditor in such matters, see section 1038, Revised Statutes, State v. Commissioners, 31 Ohio St. 271; Insurance Company v. Cappellar, 38 Ohio St. 273.
    4. The constitution and the laws undertake to tax banks, only on the money and property employed in the business of banking. Const., art. 12, sec. 3; Hines Case, 3 State 3; Stark County Bank v. McGregor, 6 Ohio St. 47, 48; Robinson et. al. v. Ward, 13 Ohio St. 294; Wagoner v. Loomis, 37 Ohio St. 571; The Tax Law of 1852, Swan’s Statutes 905; Vol. 55 Ohio Law, 129; Vol. 56 Ohio Law, 201, 2, 3; Vol. 58 Ohio Law, 59; Vol. 64 Ohio Law, 205; Vol. 79 Ohio Law, 109 . The constitution prescribes the rule of taxation, and that rule is the value. But the mode or rule for ascertaining the value, is regulated by law; in other words, is left to the discretion of the legislature. See authorities cited above.
    5. Section 2759, complained of, is the method adopted by the legislature, for ascertaining and fixing the value of property emplqyed by banks like the defendant in error. When the value is so ascertained, there is no authority in the law for deductions of any kind; and none have been attempted to be made by the bank in this case.
    6. If a mistake was made by the bank in the return complained of, the matter should have been corrected by the board of equalization. Revised Statutes 2804-8; Humphrey v. Safe Dep. Co., 29 Ohio St. 608; Wagoner v. Loomis, 37 Ohio St. 571.
    7. If parts of the section complained of are unconstitutional, the whole section fails, because it is one entire scheme; and if the statute is unconstitutional, then there is no law for taxing banks like the defendant in error. State v. Hipp, 38 Ohio St. 230; State v. Frame, 39 Ohio St. 412; State v. Sinks, 42 Ohio St. 346; Butzman v. Whitbeck, 42 Ohio St. 231.
    8. The power of taxation is included in the legislative power. Neither section 2 nor 3 of art. 12, contains a grant of power, but a regulation of power already granted in first section of the second article of the Constitution of Ohio. Baker v. Cincinnati, 11 Ohio St. 541, 2, 8; Const., Art. 2, sec. 1.

      Ace Gregg, also, for defendant in error.
    1. In this case the constitutionality of a part of sec. 2759, as amended, Ohio Law, 1882, page 109, is drawn in question. It is claimed that the part of the 9th subdivision authorizing deductions is in conflict with sec. 8 of article 12, Const. The constitutionality of an act is to be determined by its operation, and not by the form it is made to assume. State ex rel. Att’y Gen’l. v. The Judges, 21 Ohio St. 1-11. An act of the legislature should never be declared unconstitutional if the case can be disposed of upon any other tenable grounds. Irland v. Turnpike Co., 19 Ohio St. 369; State ex rel. v. Cincinnati, 20 Ohio St. 18-33. On this subject I also cite McCormick v. Alexander, 2 Ohio 65; C. W. & Z. Ry. Co. v. Clinton Co., 1 Ohio. St. 77; Goshorn v. Bursell, 11 Ohio St. 641; Cincinnati v. Bryson, 15 Ohio 625; Exchange Bank v. Hines, 3 Ohio St., 1-34; 5 Ohio St., 497.
    2. When the provisions are all part of a single scheme, having a common object and are interwoven with and dependent upon one another, if any are unconstitutional, all must fall. Monroe v. Collins, 17 Ohio St. 665-684; Piqua v. Zimmerlin, 35 Ohio St. 507-511, 512.
    3. The power to tax unincorporated banks is especially provided for in Revised Statutes, sec. 2758 to sec. 2761, inclusive. There being special provisions governing the taxing of this class, they are thereby withdrawn from the operation of other provisions of statute applying to other classes.
    4. If the subdivision of see. 2759 complained of is declared void, then I claim there is no authority conferred on auditors to place taxes against banks of this class. The constitution will not execute itself. It merely prescribes the character of law that may be passed, and until the laws are passed, the taxes cannot belevied. Forazier v. Scribner, 16 Ohio St. 615-623, 624; 13 Ohio St., 293; Cooley on Taxation, page 513, etc.

      5. In this case tbe returns were made upon blanks furnished by the auditor, and in conformity thereto. The law required the auditor to furnish blanks for that purpose. The returns were full and complete, and it has never been claimed that they were false, and the proceeding or act of the auditor in making the addition does not come within sections 2781 and 2782. Insurance Co. v. Cappeller, 38 Ohio St. 560.
    6. The act of the auditor was not the correction of an error discovered in the tax list and duplicate. No error was claimed to exist in the tax list. The duplicate was properly made up as the law directed it should be. On this state of case the act of the auditor was something more than merely clerical. Both the cases in 31 Ohio St., 271, and 38 Ohio St., 560, limit the corrections which auditors can make under sec. 1038, to those merely clerical.

      Mills Gfardner, also, for defendant in error.
    1. Taxation exists only as is provided by law, and without the legislation there can be no taxation. Taxes must be imposed only by the mode provided by law, and if no means have been provided, no taxes can be imposed. The law must provide for what shall be taxed, and, as well, the mode and manner. Sec. 2 of art. 12 of the constitution only declares the duty of the general assembly to provide the mode and manner of taxation, and what shall be taxed. If the general assembly does not make the necessary provisions, by law, to carry into effect this constitutional provision, it is clear no tax can be collected. Baker v. Cincinnati, 11 Ohio St. 534; Bank of Toledo v. Toledo, 1 Ohio St. 623. The general assembly has provided the means and manner of taxation, by Title 13 of the Revised Statutes.
    2. The county auditor cannot place upon the duplicate, or charge taxes on “ credits,” other than defined by law, which is the excess of dues over debts. Whether or not the term “ credits,” as used in the constitution, means more or less than this, can make no difference. The law provides for the taxation of credits, as defined by the tax law, and no other.
    3. Sec. 2734, which imposes the duty on all persons to list “ all credits due and owing them,” is to list credits as defined by sec. 2730. There is no law for the listing of personal property, except as is provided in chapter 2 of the tax law. Sec. 2734 applies to individuals only, or as trustee, etc., and has no application to corporations, merchants, bankers, etc., and the manner provided by this section is very different from that provided for the listing of merchants’ stocks or banks. Sec. 2740 applies only to merchants as therein defined. They are not taxed on the capital invested, but upon the average monthly value of their stock of goods for the year preceding, to be ascertained in the manner therein prescribed. The auditor cannot charge them with any other amount than is found in this manner.
    4. Secs. 2758, 2759, 2760 and 2761 contain all the provisions of law for the taxation of incorporated banks, defines what they are, and the means and mode of taxation. The court cannot impose a duty on a bank that is not provided for in these sections. The eight several items of section 2759, which constitutes the statement a bank is required to make, ascertain just what of the bank shall be charged for taxation. The general assembly intended this as the plan or scheme of banks of this class for taxation. Changing in any manner either one of the items, or striking it out, destroys the whole scheme, and renders it impossible to carry out the legislative intent, so that the whole section must stand or fall together. If this scheme, or this means, is not in accord with the constitution, then there is no provision of law whatever for the taxation of this class of banks, and the auditor has no power or right in the matter.
    5. Sec. 3810 confers no legislative powers upon the auditor. It only authorizes him to make corrections of error which he discovers-; not to correct errors of deficient or imperfect legislation, nor errors made by the general assembly. The evident purpose of the tax law was, as to banks, to tax rather their business than their capital, in a manner similar to the business of merchants. To allow in its full force the defined meaning of the word credit, as it exists in their business, and as applied to others. If this is not right, then an appeal must be made to tbe general assembly, not to tbe courts, or io the county auditor.
   Dickman, J.

Tbe main question for our consideration grows out of a provision in section 2759, of tbe Revised Statutes, which, it is contended, is in contravention of tbe constitution of this state. That section is as follows: “All unincorporated banks and bankers shall annually, between the first and second Mondays of May, make out and return to the auditor of the proper county, under oath of the owner or principal officer or manager thereof, a statement setting forth: First, — The average amount of notes and bills receivable, discounted or purchased in the course of business, by such unincorporated bank, banker or bankers, and considered good and ■ collectible. Second, — The average amount of accounts receivable. Third, — The average amount of cash and cash items in possession or in transit. Fourth, — The average amount of all kinds of stocks, bonds, including United States government bonds, or evidences of indebtedness, held as an investment, or in any way representing assets. Fifth, — The amount of real estate at its assessed value. Sixth, — The average amount of all deposits. Seventh, — The average amount of accounts payable, exclusive of current deposit accounts. Fighth, — The average amount of United States government and other securities that are exempt from taxation. Ninth, — The true value in money of all furniture and other property not otherwise herein enumerated. From the aggregate sum of the first five items above enumerated, the said auditor shall deduct the aggregate sum of the fifth, sixth, seventh, and such portions of the eighth items as are by law exempt from taxation, and the remainder thus obtained added to the amount of item nine, shall be entered on the duplicate of the county in the name of such bank, banker, or bankers, and taxes thereon shall be assessed and paid the same as provided for other personal property assessed and taxed in the same city, ward, or township.” The proposition sought to be established in behalf of the plaintiff in error is, that the part of section 2759 which requires that county auditors, in levying taxes, yearly, upon unincorporated banks and bankers, shall deduct the aggregate sum of the fifth, sixth and seventh items, from the aggregate sum of the first five items of the section, is repugnant to section 3, of article 12, of the constitution, and is, therefore, void.

The real estate returned by the defendant in its statement of assets, was already taxed on the duplicate as real property, and its deduction, at its asssessed value for taxation, cannot be deemed unauthorized. The average amount of the United States government and other securities exempt from taxation, were obviously proper subjects of deduction from the fourth item of the bank’s return, embracing the average amount of all kinds of stocks, bonds, including United States government bonds, or evidences of indebtedness, held as an investment, or in any way representing assets. And, in our judgment, in determining from the bank’s return the amount of assets to be placed upon the duplicate for taxation, the bank was entitled to have deducted from the average amount of all its notes and bills receivable, discounted or purchased, and considered good and collectible, the average amount of all deposits, and the average amount of accounts payable, exclusive of current deposit accounts; but the deduction of the average amount of such deposits and accounts payable, from the average amount of the bank’s cash or cash items in possession, may well be held unallowable on constitutional grounds.

By the repeated decisions of this court, the second section of article 12, of the constitution, furnishes the governing principle for all laws levying taxes for general revenue, whether for state, county, township or municipal purposes. That section provides 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 grounds, 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.”

Under the comprehensive requirement of this section, property of every description, except the kinds specially exempted, whether owned by individuals or corporations, is made to bear an equal and just proportion of.the public burdens, by way of taxation, in return for the protection and advantages afforded by the government. The object of the section was to devise a system of taxation, that would approximate to the standard of perfect equality and uniformity. Hence, the provision requiring all property in the state to be taxed by a uniform rule, according to its true value in money. It might, however, be inquired, what need was there of section 8, of article 12, of the constitution, if it was not intended to establish a rule as to banks and bankers different from the rule respecting individuals. Section 3 reads as follows: “ The general assembly shall provide, by law, for taxing the notes and bills discounted or purchased, moneys loaned, and all other property, effects, or dues, of every description, (without deduction), of all banks, now existing, or hereafter created, and of all bankers, so that all property enqsloyed in banking, shall always bear a burden of taxation, equal to that imposed on the property of individuals.” Barring the two hundred dollars exemption for each individual, here is a plain indication that, as between banks and individuals, the property of each respectively should bear equal burdens of taxation. And, by section 4, of article 13, of the constitution, “ The property of corporations, now existing or hereafter created, shall forever be subject to taxation, the same as the property of individuals.” It is said in Exchange Bank of Columbus v. Hines, 3 Ohio St. 1, that there was no absolute necessity for section 4, for without it, section 2, of article 12, would have embraced existing and future corporations. “It was inserted,” says Teojbman, J., “out of abundant caution, that there might be no doubt either as to existing or future corporations, what' would be the rule of taxation. So, section 8, of article 12, was inserted, that there might be no doubt how existing, as well as future banks and bankers, whether incorporated or unincorporated, were to be taxed; that there might be no doubt what property of theirs was to be the object of taxation; and further, to deprive them of even the two hundred dollars exemption, which may be permitted to individuals under section two. And hence it is that we find in it the words “ without deduction.” Such caution would naturally be induced by the fact, that for many years, the legislature had been accustomed to pass acts for the incorporation of turnpike, plankroad, canal, and probably railroad companies, that contained provisions exempting them from taxation. Bartley, C. J., in delivering the opinion of the majority of the court in the same case said: “ The third section requires all property employed in banking to be taxed ‘without deduction.’ The deduction here inhibited amounts simply to an express denial to the banks of the deduction allowed in the preceding section by the exemption in favor of individuals, and has reference to it.” But the standard of equality and uniformity in taxation has been established by the constitution, for corporations and individuals alike, and excepting the special exemptions from taxation mentioned in the constitution, the rule for taxation as to banks and bankers is not different from the rule as to individuals.

In Exchange Bank of Columbus v. Hines, supra, it was decided, that the tenth section of the tax law of April 13,1852, which allowed individuals and certain, corporations, in giving their tax lists, to deduct their liabilities from the amount of their moneys and credits, was repugnant to the constitution — inasmuch as taxes are required to be assessed on all property — and was consequently void; and that the constitution permitted no deduction of liabilities from moneys and credits. If the nineteenth section of the same law, which made it the duty of every bank to make out and return annually for the purpose of taxation, to the auditor of the county, a written statement of the average amount of notes and bills by it discounted or purchased, had authorized the bank to deduct from such amount the amount of all legal Iona fide debts by it owing to any person, company or corporation, for a consideration received, it might, for the same reason, have been declared to be opposed to the constitution, for it would have permitted a deduction of the bank’s liabilities from the amount of its credits, according to the acceptation of that term as then adopted by the court. Notes and bills discounted or purchased by a bank were then treated as credits, and, in that sense, if the bank had been permitted to make such deduction while individuals were not, it could not have been said that, within the meaning of the constitutional provision, the property employed in the bank bore “a burden of taxation equal to that imposed on the property of individuals.”

Section 2, of article 12, in specifying the subjects of taxation, is as applicable to banks and banking companies as to individuals, and such applicability is as broad in regard to the species of property to be taxed, as in respect to the rule of taxation prescribed by the constitution. The section contemplates the taxing of the moneys and credits of banks and banking companies, as well as the moneys and credits of individuals. Section 3, of article 12, designates no form of property, and no kind of corporation, which, for the purpose of taxation, is not comprehended in the preceding section.

Recognizing the principle that credits, like all other kinds of property of banks, are to be taxed according to the standard fixed by the constitution, we come to the consideration of the question, what are credits within the meaning of our tax law? We do not propose to review the discussion on that subject in Exchange Bank of Columbus v. Hines. Brief citations will suffice. Thubman, J., in his concurring opinion, says: “Nor is it true that in legal signification, or in popular parlance, the term ‘ credits ’ means’ what is due to a man after deducting his liabilities.”, Ranney, J., in his dissenting opinion, uses the language: “ Credits are, by the constitution, to be taxed, and from the gross amount, each individual is, by the tenth section of the act of April 13. 1852, entitled to deduct his bona fide debts, and return the balance. The language of the law may not be strictly accurate. The evident meaning, however, is, that debts may be deducted from the gross amount of notes, accounts, and other choses in action, belonging to the individual. If the balance thus ascertained, is not the precise amount and value of the credits of the party against the world, both in legal and popular sense, I confess myself unable to understand the meaning of words or force of language.”

But more than thirty years ago, the term received a legislative exposition which has ever since remained undisturbed. Much deference is certainly due to legislative construction— if deliberatively given — as to the meaning of the language used in the constitution, and although it may not be conclusive upon the judicial tribunal, it is nevertheless entitled to great weight. In section 5, of the act of April 1, 1856, (53 Ohio L. 52,) it was enacted: “ The term ‘ credits,’ shall be held to mean the excess of the sum of all legal claims and demands, whether for money or other valuable thing, or for labor or service due or to become due to the person liable to pay taxes thereon,.....when added together, (estimating every such claim or demand at its true value in money,) over and above the sum of the legal bona, fide debts owing by such person.” The same provision is continued in section 2730 of the Revised Statutes. This statutory definition was the basis of the decision in Payne v. Waterson, 37 Ohio St. 121; it also entered into the decision in Insurance Company v. Capellar, 38 Ohio St. 560, and until changed by the legislature, we are not inclined to say that it should not be followed. Acquiescing in the meaning of the term as thus settled by statute, the amount of the credits of the defendant to be placed upon the duplicate for taxation, will be the excess of all its legal claims and demands over and above its bona fide debts; in other words, its credits will be estimated by deducting such debts from its legal claims and demands. What were the legal claims and demands of the defendant as set forth in the return made to the county auditor ? They are embraced in the first item of the bank’s statement, and are denominated the average amount of all notes and bills receivable, discounted or purchased. From this amount is to be deducted the sum of the legal bona fide debts owing by the bank, which as appear in its return, are specified in the sixth and seventh items, and include the average amount of all deposits, and the average amount of accounts payable, exclusive of current deposit accounts.

As regards general deposits, the relation of banker and customer is that of debtor and creditor. 2 Am. & Eng. Ency. of Law, 93. A bank is accountable for the deposits it receives, as a debtor, and agrees to discharge those debts by honoring the checks which the depositors shall from time to time draw on it. The contract between the parties is purely a legal one, and has nothing of the nature of a trust in it. The bank is not bound to keep the money placed in-its custody, or deal with it as the property of its principal, but is, of course, answerable for the amount, because it has contracted, having received the money, to repay to the principal, when demanded, a sum equivalent to that paid into its hands. Foley v. Hill, 2 H. of L. Cas. 28; Bank of the Republic v. Millard, 10 Wall. (U. S.) 152. The average amount of all deposits, and of accounts payable, returned by the defendant in the sixth and seventh items of its statement, should, therefore, be deducted from the average amount of all its notes and bills receivable, discounted or purchased.

But this deduction should not be made from the average amount of cash and cash items in possession. Money or cash, for the most part, is regarded and treated as property in possession, having intrinsic value, and not the mere evidence of claims upon others. As property in hand, of a tangible nature, distinctive in itself, and determinable as to value without the uncertainty of mere choses in action, it cannot be reduced or diminished on the tax duplicate by deducting from it the liabilities of the owner — whether individual or corporation — without an infringement of the constitutional requirement that all property shall be taxed by a uniform rule. And that portion of section 2759 of the Revised Statutes, which directs the auditor to make the enumerated deductions, so far as it includes in the aggregate from which the deductions are to be made, the average amount of cash and cash items in possession, is, in our view, repugnant to the constitution and void, but is not otherwise objectionable on constitutional grounds.

The question arises, however, whether, if that portion of the section is declared wholly or in part unconstitutional and void, it may not result in invalidating the. entire section. As one section of a statute may be repugnant to the constitution without rendering the whole act void, so, one provision of a section may be invalid by reason of its not conforming to the constitution, while all the other provisions may be subject to no constitutional infirmity. One part may stand, while another will fall, unless the two are so connected, or dependent on each other in subject-matter, meaning or purpose, that the good cannot remain without the bad. The point is, not whether the parts are contained in the same section, for, the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance —whether the provisions are so interdependent that one cannot operate without the other. As said by Waite, C. J., in Allen v. Louisiana, 103 U. S. 80, 84, “ the point to be determined is whether the unconstitutional provisions are so connected with the general scope of the law as to make it impossible, if they are stricken out, to give effect to what appears to have been the intent of the legislature.” See Commonwealth v. Hitchings, 5 Gray 482; Commonwealth v. Kimball, 24 Pick 362; People v. Kenney, 96 N. Y. 294; Robinson v. Bidwell, 22 Cal. 379; Hagerstown v. Dechert, 32 Md. 369; Exchange Bank of Columbus v. Hines, supra; Railroad v. Commissioners, 31 Ohio St. 338; Gibbons v. Catholic Institute, 34 Ohio St. 289; Bowles v. State, 37 Ohio St. 35; Cooley on Const. Lim. (6th ed.), 211. The several items enumerated in section 2759, are separate and distinct in their character. Their respective average amounts are obtained by independent computations, and the full amount of the third item, when entered on the duplicate, could not interfere with the proper deductions authorized to be made from the others. There may be an assessment of taxes at the annual rate upon the average amount of cash and cash items, while the amount of all the other taxable assets of the bank may be easily obtained from its tax return, by the method prescribed in the section, and thereupon placed on the duplicate for taxation. In the face of the constitutional provision, that laws shall be passed' taxing by a uniform rule all moneys, it could not be assumed that the general assembly would not have required unincorporated banks and bankers to return in the list of their taxable property the average amount of cash and cash items, if they had known that the clause directing the auditor to make a deduction from the amount so returned, was opposed to the organic law. And furthermore, the elimination of the right to make deduction from the average amount of cash and cash items in possession, would only leave the bank on a footing of that equality with individuals contemplated in the constitution — clothed with the right of deducting the sum of its legal Iona fide debts, from the sum of its legal claims and demands, and of being taxed on the excess as credits. The fact that the auditor could derive no authority under the statute to make any deduction from the average amount of the bank’s cash and cash items in possession, would not make it any the less his duty under other provisions of the tax law, to place upon the tax duplicate the bank’s taxable property, nor affect the method prescribed by law for enforcing the collection of the taxes assessed.

Was the auditor empowered, under section 1088, of the Revised Statutes, to correct the error in the amount of taxes for the year 1885, assessed against the defendant upon the then current duplicate, so far as it resulted from the erroneous deduction from the average amount of cash and cash items in possession, shown by the defendant’s return of its taxable property to the auditor for taxation ? That section provides: “ The auditor shall from time to time, correct all errors which he discovers in the tax-list and duplicate, either in the name of the person charged with taxes or assessments, the description of lands or other property, or when property exempt from taxation has been charged with tax, or in the amount of sucb taxes or assessments.” It is not claimed that tbe return of the defendant was false within the meaning of the statute. On its face it contained all the facts necessary to making the correction. The action of the auditor was essentially clerical, and it only devolved upon him to enter on the duplicate for taxation the amount of cash returned in the defendant’s own figures. The correction, we think, was allowable under the decision in Insurance Company v. Cappellar, supra, a case, in which, the item of “ reinsurance,” under the head of a legal bona fide debt, was erroneously deducted by the auditor from the amount of claims and demands due the company.

For error in holding that, the auditor was not authorized by law to enter upon the duplicate for taxation, the average amount of cash and cash items in possession returned by the defendant for taxation, without deduction therefrom, the judgments of the circuit court and of the court of common pleas should be reversed, and the cause remanded to the court of common pleas for the rendition of judgment against the defendant for taxes, at the proper rate, for the year 1885, on such average amount of cash and cash items in possession, without any penalty thereon.

Judgment accordingly.

Williams, J., not sitting in the case.