Probasco v. Raine
| Decision Date | 13 June 1893 |
| Citation | 50 Ohio St. 378,34 N.E. 536 |
| Parties | PROBASCO v. RAINE, Auditor. |
| Court | Ohio Supreme Court |
Error to superior court of Cincinnati.
Action by Henry Probasco, executor and trustee, against Frederick Raine, county auditor, for an injunction. Defendant had judgment, and plaintiff brings error. Reversed.
The other facts fully appear in the following statement by BURKET, J.:
On June 30, 1887, plaintiff in error, also plaintiff below, filed his petition in the superior court of Cincinnati against the defendant in error, also defendant below, as auditor of Hamilton county, seeking to enjoin said auditor from placing upon the tax duplicate, for taxation for the year 1887, the sum of $100,000 of the stocks of the state, issued under the act of April 8, 1856, held by plaintiff, for the years 1881 to 1886, both inclusive, which stocks plaintiff claimed were exempt from taxation by virtue of Act Feb. 4, 1825, (23 Ohio Laws, p. 55; Chase's St. p. 1472,) and Act of April 8 1856, (53 Ohio Laws, p. 112.) Defendant, in his answer admits that he is about to place said stocks on the duplicate for taxation for the years aforesaid, and avers that said stocks are not exempt from taxation, and that they have been omitted for said years. The case was reserved to the general term of the superior court, and was there tried upon an agreed statement of facts, and judgment rendered for defendant, at costs of plaintiff. By the judgment of the court the auditor was ordered to proceed and place said stocks on the duplicate for taxation for each of said years including in said assessment for the year 1886 a penalty of 50 per centum. To all of which plaintiff excepted. Plaintiff filed his motion for a new trial, which was overruled, and exceptions taken. A bill of exceptions was filed, bringing into the record the said agreed statement of facts, which is as follows:
‘ For the purpose of the trial of this cause the parties to this action agree upon the following as a full and complete statement of the facts herein, and also that, in so far as the pleadings herein may vary therefrom, the said pleadings may be considered as amended, or may be amended at any time so as to conform thereto.
‘ (1) That Julia A. Probasco died prior to the commencement of this action, and that for more than ten (10) years immediately preceding the time of her death she was a resident of Clifton, Millcreek township, Hamilton county, Ohio.
‘ (2) That, on the day preceding the second Monday in April in each of the following years, Henry Probasco, as trustee and executor of the estate of said Julia A. Probasco, (the said Henry Probasco having been during all of said years a resident of Clifton, Millcreek township, Hamilton county, Ohio,) was the owner and holder of certificates of indebtedness of the state of Ohio, commonly known as ‘ canal stocks,’ in the amounts of the par value thereof, as follows, viz.: 1881, $100,000; 1882, $100,000; 1883, $100,000; 1884, $100,000; 1885, $100,000; 1886, $100,000; none of which were returned for taxation nor listed upon the blanks left by the assessor in each of said years for his returns.
‘ (3) That said certificates of indebtedness were issued under and by virtue of an act of the legislature of Ohio passed April 8, 1856, (53 Ohio Laws, p. 112,) entitled ‘ An act to provide for the payment of the public debt of the state, due January 1, 1857, and for the payment of the interest on the public debt.’ And it is agreed that said certificates were in the form of the blank certificate attached to the agreed statement of facts in case No. 42,618 of this court, marked ‘ Exhibit A. A. Gardner, Jr., Clerk of Sinking Fund Commissioners,’ and which blank form, it is agreed, may be copied into the record herein, as part thereof.
‘ (4) That the holding by plaintiff of certificates of indebtedness issued as aforesaid, and the redemption thereof, as shown on the books of the sinking fund commissioners of the state of Ohio, were as follows, viz.:
| Oct. 24, 1865, | certificate | No. | 1635......... | $25,000 00 |
| Oct. 24, 1865, | " | " | 1637......... | 5,000 00 |
| Jan. 24, 1866, | " | " | 1675 to 1679, |
| incl......................................... |
| Making a total of.......................... |
‘ That on the 25th day of January, 1887, all of said certificates of indebtedness were fully redeemed by the sinking fund commissioners.
‘ (5) That there was no change in the ownership of said certificates from the date of the first ownership thereof by plaintiff, save as above set forth, and that plaintiff was never otherwise the owner or holder of any of the said certificates of indebtedness, or of any other certificates of indebtedness of the state of Ohio.
‘ (6) That the certificates issued under the act of 1856, above referred to, bore the same rate of interest as those issued under the acts of 1825 and 1826, referred to in the pleadings, to wit, six per centum per annum.
‘ (7) That prior to the commencement of this action the defendant, Frederick Raine, as auditor of Hamilton county, Ohio, was about to charge plaintiff, on the tax lists and duplicates of said county, with the proper taxes on the said investments in said stock or bonds, as set forth in section 2 of this agreed statement of facts, and would have done so except for the proceedings herein.
‘ (8) That, as to all other property owned by plaintiff subject to taxation during each of said years, the same has been properly listed for taxation and the taxes paid thereon by plaintiff.
‘ (9) That none of said bonds or the state stocks issued under the said act of 1856, nor the investments therein, have ever, as a matter of fact, been listed for taxation, or subjected thereto by state authority; but the question as to whether the law required the same to be listed and taxed, under all the circumstances, is to be passed upon herein.
‘ (10) The amount of the indebtedness under the acts of 1825 and 1826 was, in 1865, $2,334,000, and remained then outstanding at the date of the passage of the act of April 8, 1856. The income of said bonds was distributed and paid over by the executor and trustee to the beneficiary as the same was received.
'
‘ No. 1,637. $5,000. State of Ohio Canal Stock. Columbus, Ohio, Oct. 24, 1865. Be it known the state of Ohio owes to Mrs. Julia A. Probasco, or her assigns, the sum of five thousand dollars, bearing interest from the first day of July, 1865, inclusively, at the rate of six per cent. per annum, payable half yearly, on the first days of January and July, in the city of New York, being stock created in pursuance of an act of the general assembly of the state of Ohio, passed April 8th, 1856, the principal of which is reimbursable in the city of New York, at the pleasure of the state, after the 31st day of December, 1886, which debt is recorded in this office, and is transferable only by appearance in person or by attorney, according to law, upon the books of the commissioners of the sinking fund. In testimony whereof, this certificate hath been signed at the office of the board of commissioners of the sinking fund, at Columbus, aforesaid, by the president thereof, countersigned by the secretary of state, who hath also registered and certified the same, and affixed the great seal of the state thereto, and hath been certified to be valid and in due form by the attorney general of the state. James H. Goodman, Auditor of State and President. Contersigned and registered. Wm. Henry Smith. [Great Seal of the State of Ohio.]
The fee of 4 per cent. given county auditors by Rev.St. § 1071 (See Gen.Code, § 2625), on amount of tax collected and paid into the county treasury on property improperly omitted and placed by them upon the tax duplicate, does not disqualify them from exercising the power conferred by §§ 2781 (See Gen.Code, § 5398) and 2782 (repealed) of placing such omitted property upon the tax duplicate.
1. If a statute is constitutional it is valid, and cannot be set aside by a court as being against public policy or natural right. There can be no public policy or right in conflict with a constitutional statute.
2. The fee of 4 per centum to county auditors, provided for by section 1071, Rev. St., does not disqualify such auditors from performing the duties and exercising the powers imposed on them by sections 2781 and 2782, Rev. St.
Jordan & Jordan, Perry & Jenney, R. A. Harrison, Paxton & Warrington, and Ramsey, Maxwell & Ramsey, for plaintiff in error.
Spiegel, Bromwell & Foraker, County Solicitors, W. L. Avery, W. W. Boynton, and L. W. Goss, for defendant in error.
BURKET, J., (after stating the facts.)
The sections of the Revised Statutes under which the...
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