Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

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line of which were a number of these burial lots, and an assessment was
charged against such lots to defray, in part, the cost of the sewer. In a
suit to recover this assessment, held, that the assessment was a species of
local taxation, and within the exemption clause of the charter, and that
the lot-holders were not liable.

As to taxation of cemeteries, see Lima v. Cemetery Association, 5 Am.
& Eng. Corp. Cas. 547, and note.



' Cameron

V,

Cappeller, Auditor, et al.

(41 Ohio State Reports, 533.)

A statement for the taxation of personal property, mone3rs, credits,
investments in bonds, stocks, joint stock companies, or otherwise, which
omits a judgment, in reference to which proceedings in error are pending
in the Supreme Court, may be corrected by the county auditor under the
power conferred by sections 2781 and 2782, Revised Statutes.

In putting such judgment on the tax duplicate the auditor should place
it there at its true value at the time the owner should have listed it, and
not at its nominal value.

Error to the District Court of Hamilton County.
Alfred Yaple for plaintiff.
Goss dr Cohen for defendant.

Nash, J. — The most important question involved in this case
is this : A judgment has been obtained in a court of com-
QuKSTioH. mon pleas, and it is involved by proceedings in error



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CAMERON V. CAPPELLER et al. 439

in the Supreme Court. Does section 2734, Rev. Stats., require
the Usting of such a judgment for taxation? This section
requires the listing of all credits due or owing from any
person or persons, body corporate or politic. By section
2730, Rev. Stats., the word " credits** is 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 . . . (estimating every such claim or demand at its
true value in money), over and above the sum of legal bofia-
fide debts owing to such person."

Surely when a legal claim is reduced to judgment, although
there is alleged error in so doing, it does not so lose its taxa-
ble character as to excuse its owner from return- ^^^^^^^ „
ing it for taxation at its true value. When he does taxable.
not do so the county auditor, acting under the a[uthority con-
ferred by sections 2781 and 2782, Rev. Stats., may place it
upon the tax duplicate. In the case of Bank v, Hines, 3
Ohio St. I, it was held that choses in action must be listed
lor taxation. Every reason requiring this to be done ap
plies with equal force to such a judgment as the one we are
now considering.

But such judgment should be listed at its true value at the
time of listing:. In the opinion in the case just but lwtablb

, ^, . r^ ^ , - ■'. _ AT ITS TRUK

referred to, 3 Ohio St. 25, it was correctly said : v^^"
*' In estimating the taxable valuation of credits, they are not
to be taken at their nominal amount, but, like the valuation
of other property, every circumstance aflfecting, in any man-
ner, their value should be taken into consideration. If the
debtor be wholly insolvent, the credit is of no value, and
therefore has no basis for taxation. If the debtor be in
doubtful or failing circumstances, if the claim be disputed,
contested, or involved in litigation, or if any defence by way
of payment, or otherwise, either in whole or in part against
the claim be known to exist, it should be considered and all
proper allowances made in estimating its taxable valuation.

The district court in the case now before us proceeded to
render the judgment, which the Court of Common Pleas, in
its opinion, should have given, and in doing this valued the
interest of Cameron in the judgment at its nominal value in
1876, 1877, and 1878, only deducting therefrom the amount



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440 BENTLKV V. BARTON.



4



of his attorney's fees. In these years there was a proceeding
in error, pending and undecided, in the Supreme Court, to
reverse the judgment. By it important, novel, and difficult
questions of law were raised, and it was uncertain whether
the judgment would be affirmed. This situation certainly
lessened the value of the judgment during its pendency. In
fact the petition averred that these things wholly destroyed
the value of Cameron's interest in the judgment, and when
the District Court acted the averments of the petition had
not been denied.

Therefore we think that there was error in the judgment
of that court for which a judgment of reversal is entered
herin.

Judgment reversed.



Bentley

V,

Barton.

(41 Ohio State Reports, 410.)

Where the United States appropriated section number sixteen in every
township ... for the use of schools in such township, and vested the
same in the legislature of the State " in trust for the use aforesaid, and
for no other use, intent, or purpose whatever," in an action by a county
treasurer against a lessee of such lands, who held a lease for ninety-nine
years, renewable forever, whose lands were taxed under section 2733, Rev.
Stats., as the property of the lessee, to enforce the payment of the taxes so
assessed, held —

That, in the absence of a provision in the terms of acceptance of such
lands by the State that they should be forever free from taxation, they
are taxable after sale or lease by the State, as other lands in the State.

That section 2733, Revised Statutes, provided for the taxation of such
lands held under such lease as the property of the lessee.

Error to the District Court of Columbiana county.

The plaintiff in error, William G. Bentley, treasurer of
Columbiana county, brought his action against Henry Bar-
ton, defendant in error, alleging that there stood charged on
the duphcate of taxes for that county for the year 1880, the
sum of $9.23 against eighty-three acres of land in section six-
teen of Elkrun township, in the name ot Henry Barton, and
prayed that m case said taxes were not paid by a day to be



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BENTLEY V, BARTON. 44 1

fixed by the court, the lands should be sold to satisfy such
taxes.

The defendant answered : that the tract of land described
in the petition in this case, is a part of section sixteen, in
Elkrun township, Columbiana county, Ohio ; that said sec-
tion sixteen was, by act of the Congress of the United States,
set aside for the use of schools in said township ; that said
section, so set aside, was accepted by the people of Ohio for
the use and support of schools in said township, the title
thereof being vested in the legislature of said State, in
trust for said purpose ; that, in pursuance of the several acts
of the legislature of said State, ordering and authorizing
the leasing of said section sixteen, the township trustees
of said original surveyed township of Elkrun, on the
28th day of April, 1821, by a written lease, duly executed,
acknowledged and dehvered, leased to Alexander Rodgers,
the northeast quarter of said section sixteen, of which the
tract described in petition is a part, at the rate of six per
cent on the appraised value thereof, said appraised value
being six dollars ($6.00) per acre, to be paid into the treasury
of the school funds of the money arising from said section
sixteen, for the use of the inhabitants of said township for
school purposes, for the full term and period of ninety-nine
years from said date of said lease, renewable forever, subject
to a re-valuation of said real estate at the end of thirty-
three years from said date of said lease, and at the end of
each thirty-three years during said term of said lease, ac-
cording to the true intent and meaning of the act of the
legislature ordering and authorizing said lease; that said
Alexander Rodgers accepted said lease of said real estate,
and under it entered into possession of the same; that said
Alexander Rodgers and his grantees and assigns have ever
since continued in possession of said real estate, and have fully
paid said rental and performed their part under said lease ;
that the defendant is a grantee and assignee of said Alexan-
der Rodgers, holding possession of said tract, in the petition
described, under and by virtue of said lease ; that the rental
of six per cent on the valuation, and re-valuation, has been
and still is paid into the school funds of said township, and
has been and still is wholly and exclusively applied for the
use and support of the schools of said township for the free



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442 BENTLEY V, BARTON.

education of the school youth therein without charge ; that
said real estate described in the peittion in this case, is
exempt from taxation, and has been, and is wrongfully placed
on the tax duplicate of said county, and has been and is
wrongfully taxed thereon; that said taxes sued for in the
petition in this case are general taxes for State, county, town-
ship, and other purposes, and that there is nothing lawfully
due from the defendant to the treasurer of said county, or to
said county, for taxes on said tract of land.

To this answer the plaintiflF demurred generally. The
court sustained the demurrer, and thereupon gave judgment
for tlie plaintiff. This judgment was reversed by the Dis-
trict Court. A petition in error is brought here to reverse
the judgment of the district court

R. W. Tayler for plaintiff in error.

J. IV. & H. Morrison for defendant in error.

McCauley, J. — By section 7 of an act of Congress ap-
proved April 30, 1802, entitled " An act to provide for the
government of the territory northwest of the river Ohio,'*
I Chase Statutes, 70, it was provided : '* That the following
propositions be, and the same are hereby offered to the con-
vention of the eastern State of the said territory when
formed, for their free acceptance or rejection ; which, if
accepted by the convention, shall be obligatory upon the
United States. First. That the section number sixteen in
every township . . . shall be granted to the inhabitants of
such township for the use of schools.*' This proposition was
accepted by the convention assembled to form a constitution
for the State of Ohio, with the modification thereof to be
assented to by Congress, that all lands appropriated for the
use of schools shall be vested in the legislature of this State,
in trust for said purpose. This modification was afterwards
assented to by Congress. Act of March 3, 1803, Chase
Statutes, 72.

The answer in the court below sets forth the nature of the
defendant's title and the mode provided by law for taxing the
property. Section 2733, Rev. Stat, which is a re-enactment
of a former statute, provides that :

" Lands held under a lease for a term exceeding fourteen
years, belonging to the State or to any religious, scientific



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BENTLEY V. BARTON. 443

or benevolent society, or institution, whether incorporated
or unincorporated, and school and ministerial lands, shall be
considered, for all purposes of taxation, as the property of the
persons so holding the same, and shall be assessed in their
names."

The defendant in error insists first, that under the statutes
the taxation of his lands is not provided for; and second,
that if the statutes do provide for the taxation of lbased school
the land, they are unconstitutional and invalid. "^"^ '^^^^^
The lands of the defendant are school lands and held under
a valid lease for ninety-nine years, renewable forever. This
clearly brings the property within the provisions of section
2733 above. This section applies only to lands held under a
lease, and describes two kinds of property, that belonging
to the State or to any religious, scientific or benevolent
society, and school and ministerial lands. It could not apply
to school and ministerial lands belonging to the State, before
the same had been leased or sold. It must therefore apply
to lands the legal title to which is in the State, but which
have been leased for a term greater than fourteen years.
The lands were properly assessed for taxes under this sec-
tion, if they are taxable at all.

Are the lands taxable? They were appropriated by the
United States to the inhabitants of each township for the use
of schools, and the title thereto was vested in the legpis-
lature of the State " for the use aforesaid, and for no other
use, intent or purpose,'* and were accepted by the State
" upon the trust aforesaid." The State, in accepting the
lands upon this trust, impliedly agreed that they or the
rents and profits or proceeds of the sale thereof, should be
applied to the use of schools in the several townships ; and
in the absence of a provision in the terms of acceptance that
they should be forever free from taxation, after the lands
were leased or sold, and the proceeds applied to the use
upon which they were held by the State, the trust by which
they were effected was fully executed ; and when the land
became private property it was subject to taxation as any
other private property in the State.

It is insisted that the taxation of these lands would appro-
priate them to a purpose other than the support TAXATiomsNot
of schools, and the State being under the obliga- lioH^T^i:



tion not to appropriate them to any other pur-

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444 CITY OF CLEVELAND V. HEISLEY.

pose, the lands are not taxable. This argument is at fault in
assuming that the taxation of the lands would appropriate
them to a purpose other than the support of schools. The
taxation of property is in no proper sense an appropriation
of it to any purpose. In a general sense it is nothing more
than the exercise of that attribute of sovereignty by which
the State provides the means of self-preservation. The trust
upon which the lands were accepted did not aflFect them
after they were leased or sold by the State, but was thereby
transferred to the fund arising from the lease or sale — direct-
ng and defining the only use or purpose to which such fund
should be applied.
Judgment reversed.



City of Cleveland

V.

Heisley.

(41 Ohio State Reports, 670.)

A village was annexed to a city in a.d. 1872, pursuant to chapter 57.
Municipal Code (66 Ohio Laws, 267). The " terms and conditions of such
annexation" authorized the city (in order to pay certain bonds thereto-
fore issued by the village, under ordinances that contemplated their pay-
ment by taxes upon its general duplicate), to collect the money " in the
manne.r and from the property specified or contemplated in" the said vil-
lage ordinances. The village territory formed two wards of the city. The
city council levied a tax upon the general duplicate of those wards alone,
to pay said bonds. This, when added to the other taxes on said dupli-
cates, exceeded the authorized limit of eleven (i i) mills. Held:

The levy of said tax upon the village territory alone, pursuant to the
"terms and conditions of such annexation," is not forbidden by Article
XII, Constitution of 1851.

The tax as actually levied was illegal because the statutory limit was
exceeded.

In a.d. 1872, the village of East Cleveland was annexed to
the city of Cleveland. The " terms and conditions of such
annexation" included (with others) the following stipulations :

** I. That the territory comprised within the limits of East
Cleveland shall, until otherwise ordained by the city council,
constitute two wards of the city of Cleveland ; so much of



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CITY OF CLEVELAND V. HEISLEY. 445

said territory as lies south of Euclid Street shall be designated
and known as the * Sixteenth ward/ and so much as lies north
of said street shall be designated and known as the ' Seven-
teenth ward/

" 3. All rights and property of every description whatever,
belonging to either of said corporations, shall become the
rights and property of the city of Cleveland, and all existing
legal liabilities of each of said corporations shall be assumed
b.y the city of Cleveland ; Provided, however, that all assess-
ments made or bonds issued for street or other improve
ments, under the authority of existing ordinances, shall be
collected at the times and in the manner and from the prop-
erty specified or contemplated in such ordinances respective-
ly, except the sum of ten thousand dollars of the indebtedness
of East Cleveland, the estimated cost of paving street inter-
sections, which is to be assumed and paid for by the city of
Cleveland.

"6. As soon as practicable after such annexation is con-
summated, the city council shall pass all such ordinances as
may be necessary and proper to carry into effect all the terms
and conditions in this agreement of annexation mentioned
and set forth/'

In A.D. 1870, the council of the village duly ordered an
improvement of a part of Euclid avenue, and resolved " That
the cost and expense of making said improvement, except
at street crossings and one half in front of school house in
District No. 2, be defrayed by assessing the whole cost of
said grading and one third of said paving on the lands abut-
ting on said improvement by the foot front, and the balance
be defrayed by a tax to be levied on the general duplicate of
property, both real and personal, in this village/'

Similar action had been taken as to other street improve-
ments. In anticipation of levies, and assessments, the village
had issued its bonds. All the bonds based upon assessments
were paid by assessments. Of the other bonds the city paid
$10,000 (the estimated cost of the street intersections), with
moneys raiseci by a general tax on the city duplicate. In
A.D. 1873, the city levied a tax, upon the general duplicate of
the two wards, to pay Said remaining village bonds, and
$45,000 was collected. No tax-payer of said wards made any
objection.



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446 CITY OF CLEVELAND V. HEISLEY.

In A.D. 1879, ^h^ c^^y niade a similar levy. John W. Heis-
ley and others, acting for themselves and other tax-payers of
said wards, sued out an injunction against this tax. At a
final hearing, the common pleas court dissolved the injunc-
tion and gave judgment for the city. On appeal the district
court made a decree perpetually enjoining the collection of
said tax. The city and the county treasurer (the defendants
below) ask a reversal of this decree.

Kain, Sherwood & Bunts for plaintiff in error.

C. C. Baldwin and E. J. Estep for defendants in error.

Granger, C. J. — We are satisfied that the third stipulation,
cmr-TAXATioif in " the terms and conditions of such annexation,"

OF ADDITION TO 1.11. ti^i I'-i

?£[<^tS" ^OT authorized the aty to collect, by a tax levied upon
SUCH ADDmoH. ^jjg geueral duplicate of the two wards, enough
money to pay the bonds theretofore issued by the village,
for so much of the cost of said street improvements, as ex-
ceeded the aggregate formed by the sums assessable under
the original ordinances upon the abutting lots, and the $10,000,
estimated cost of street intersections.

Sec. 590, Municipal Code (66 Ohio Laws, 249), was then
in force. The entire cost of the improvement of street inter-
sections was a debt of the village, payable out of the proceeds
of a tax ** upon the general duplicate of all the real and per-
sonal property subject to taxation within the limits of the"
village.

The express exception of this cost, out of the bonds that
the city was authorized to pay by collections from villagers*
property, necessarily implies that the power granted to the
city, by the stipulation itself, included the power to levy and
collect a tax, upon the general duplicate of the two wards
alone, to pay bonds of the same character as those thereto-
fore issued by the village for the cost of the improvement of
street intersections. If the intent was to give power to assess
abutting lots only, the exception has no meaning whatever.
Neither city, nor village, had, or by agreement could confer,
power to assess upon the abutting lots any part of the esti-
mated cost of the street intersection improvements. The
record shows no attempt by the village to make any such
assessment. It is true that the ordinance to grade and im-
prove Madison avenue, from Euclid avenue to the north line



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CITY OF CLEVELAND V, HEISLEY. . 447

of the village, provided that the entire cost and expense of
that improvement sliould be levied and assessed upon the
abutting lots and lands. But it does not appear that any
street intersection was included in said improvement. None
of the bonds, about which the parties here contend, were
issued for Madison avenue. The $10,000, estimated cost of
street intersections, was made up of $6476.45 for Euclid
avenue; $2378.47 for Cedar street, and $1145.08 for Fair,
mount street. Tne ordinances, as to those streets, imposed
only two thirds of the entire expenses of the respective im-
provements upon the abutting lots, and charged the general
duplicate with much more than the entire cost of said street
intersections.

It seems ptain that the ordinances, as to those streets,
"contemplated" the payment of at least one third of the
bonds issued for said improvements, by the proceeds of taxes
to be levied upon the general duplicate of the village. If no
annexation had been made, such bonds could be paid in no
other way. When the council had before it the question of
making the improvement, and providing for a distribution
of jts cost, and, by ordinance or resolution, decided to charge
only two thirds of the cost upon the abutting lots, and made
the improvement under such ordinance, it had no power to,
afterwards, re-distribute the burden, and increase the share to
be assessed upon the lots.

The conduct of the parties to the stipulation, soon after
the annexation, indicates that they both understood the in-
tent to be precisely what we hold it was. The annexation
was completed in 1872. The terms were agreed upon on
August 3, 1872. In 1873, the city, by a tax limited to the
two wards, collected $45,000, to pay bonds of the same class
as those for which the tax before us was levied. Some of
the men, who acted for the village in making the stipulation,
were tax-payers then, as now. No tax-payer, in any manner,
objected to the tax of 1873. The fair presumption is, that it
was quietly paid, because it was understood that the terms
of annexation granted to the city the power to levy and
collect it. •

But it is urged that the stipulation, so construed, was in-
effective, because section 2, of Article XII, of the State Con-



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448 CITY OF CLEVELAND V. HEISLEY.

stitution, requires that all taxes shall, by a uniform rule, rest
upon all taxable property within the municipality.

So long as East Cleveland continued its separate existence,
its council could levy taxes on its duplicate to pay these
bonds.

The two municipalities were by statute given power to fix
any terms, not conflicting with existing laws. Sec. 705,
Municipal Code (66 Ohio Laws, 268), provided that, " such
annexation shall not affect, or in anywise impair, any rights,
or liabilities, existing at the time of the annexation, either
in favor of, or against, said corporations ; and suits, founded
upon such rights and liabilities, may be commenced, . . . and
carried to final judgment and execution, the same as though
such annexation had not taken place."

If such annexation had not taken place, the holder of one
of these bonds, after default, could obtain judgment against
the village ; and, through a proper court, compel the levy of
a tax upon the village duplicate to pay it.

The annexation having taken place, the rights of such a
bondholder remain the same, but the order for the levy of
the tax, to pay his judgment, can only be enforced through
the city council.

The effect of the statute was, to continue so much of the
existence of the village, as is necessary to secure the payment
of its debts. The effect of the stipulation before us was, to
continue the existence of these bonds, as debts of the village
as between the city and village. As between bondholder
and village, they of course remained obligations of the
village.

In levying the tax, the city does no more than the bond-
holder could enforce through a court. If this were the
only objection to the tax as levied, we feel sure that a court
should not, at the instance of a taxpayer, enjoin the volun-
tary doing of the very act that, at the suit of a judgment
creditor of the village, it would order to be done.

As already said, the effect of the statute and the stipula-
tion, taken together, is to continue the existence of the vil-



Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 46 of 73)