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Patton v. Bank.

superior court of Cincinnati judgment was rendered for the defendant as to amounts claimed for the years 1881 to 1885 inclusive, and judgment for plaintiff for amount claimed for 1886. Upon hearing in the Supreme Court, and finding that the return for 1886 was “ false," and the returns for the years 1881 to 1885 were simply incorrect, the judgment of the superior court was affirmed.

In Probasco v. Raine, 50 Ohio St., 379, the action was brought against the auditor to enjoin him from placing on the duplicate taxes for the year 1881 to 1886 inclusive, on certain omitted railroad stock. The case was tried on an agreed statement of facts in the superior court of Cincinnati, where the auditor was ordered to place the taxes on the duplicate, with fifty per cent. penalty for 1886. The Supreme Court reversed the judgment on the ground that the defendant's return was not "false,” within the meaning of that term, as defined in Ratterman v. Ingalls, 48 O. S., 468, and entered judgment enjoining the auditor as prayed for in the petition.

In Patton, Tr., v. Commercial Bank, the suit was for simple taxes without penalty, for the years 1891, 1892, 1893 and 1894. The corrections of the duplicate were made during the current years for 1893 and 1894; and after the current years for 1891 and 1892.

The circuit court gave judgment for the amount of taxes for 1893 and 1894 only, and this was affirmed by the Supreme Court.

The judgments in these various cases could only have been rendered as they were rendered, upon the theory that the auditor only had authority to make corrections of the duplicate back of the current year in cases where the returns were" false” and not merely incorrect. So that I hold upon authority of these cases—that the judgment must here be for the defendant for the taxes claimed for the years 1892 to 1894 inclusive.

It would follow from what has already been said that judgment should be given for the plaintiff for the taxes with penalty, upon the greenbacks held by the defendant in the years 1895 and 1896.

But one other question of some difficulty remains. Having found that the returns for 1895 and 1896 were false, as to the "greenbacks” and incorrect as to the “ accounts receivable "—the auditor having authority, under sec. 2781, Rev., Stat. to correct in 1897 the duplicaies for the preceding years 1895 and 1896, must his corrections be limited to particulars in which the returns are found to be “ false," or may he also include in his corrections particulars as to which the returns were merely incorrect?

I think in view of the decision of the Supreme Court in Ratterman v. Ingalls, supra, he would not be warranted in imposing the penalty upon amounts omitted from the return without an intent to deceive or culpable negligence.

Fayette Common Pleas.

And the circuit court of Hamilton county has held in Phipps v. Ratterman, 6 Circ. Dec., 488, that he may not even add to the duplicate, the simple taxes on amounts as to which the returu is merely incorrect, thought here turn may be false in other particulars; that he may add the taxes and penalty as to items falsely withheld from the return, but must entirely ignore matters innocently omitted.

I have already said that it is only because I am bound to respect the decisions of the Supreme Court that I hold that the auditor cannot make additions of simple taxes back of the current year, when the returns are not in any part false. Unsatisfactory as that conclusion is to me, I do not feel disposed to extend the doctrine any further than compelled by the highest judicial authority of the state. And notwithstanding the decision of the Hamilton circuit court I am of opinion that the conditions of falsity which authorize the auditor to go back of the current year, being found to exist, he may inquire into all matters touching the correctness of the returns, and bring upon the duplicate all the taxes, which the party making the return justly owed for that year, adding a penalty of fifty per cent. upon such items only as are found to have been "falsely” omitted.

This rule applied to the case at bar would require additions to the duplicate against the defendant of taxes on property as follows, for 1895: Greenbacks ....

$21,416 67 Added for penalty...

10.708 83 Accounts receivable...

78,910 28

Total additions ...

$111,035 28 This sum multiplied by the rate 29.4 mills gives the taxes for 1895 to be added

3,264 43

1896:

Greenbacks
Added for penalıy..
Account receivable...

$13 666 66

6 833 33 43,401 80

$63,901 80

Total addition
This sum multiplied by the rate for the year, viz. 32 mills,

gives the taxes tor 1896 to be added.... Taxes for 1895 brought forward

$2,044 85 3,264 43

Total taxes......
Add 5 per cent. penalty to simple taxes

$5,309 25

2.8 79

Total for which judgment is awarded.........

$5,518 07 Bedford (Vil.) v. Tarbell.

MUNICIPAL CORPORATION-BUILDING.

[Cuyahoga Common Pleas, 1900.] * BEDFORD (VIL.) v. LEVERETT TARBELL ET AL. 1. PetITION FOR BLOCKING SQUARES JURISDICTIONAL. The provisions of sec. 2473, Rev. Stat., requiring the owners of two-thirds of

the ground of a square to petition for an ordinance blocking such square against the erection of wooden buildings, are jurisdictional and without such

a petition the council has no right to act, 2. Widow MAY PETITION TO EXTENT OF Dower INTEREST. A widow owning a dower interest in such a square, is an owner within the

meaning of the statute to the extent of such interest and may petition there

for; but such widow has no right to sign for the remainder of the property. 3. CHARACTER OF BUILDINGS PROHIBITED. Section 2473, Rev. Stat., permitting municipal councils, upon proper petition, to

pass ordinances prohibiting the erection of wooden buildings whose outer walls are not of iron, stone, brick, cement or mortar, or some of them, does not authorize an ordinance prohibiting the erection of “any wooden build

ing" and an ordinance to that effect void. 4. SIGNING AND FILING PETITION NOT ESTOPPEL.

A property owner is not estopped from contesting the validity of such ordi

nance, on any ground, by having signed and filed the petition therefor. LAMPSON, J.

This action was brought by the incorporated village of Bedford, this county, against Leverett Tarbell and E. L. Foster as defendants, to restrain them from erecting a certain building in the village of Bedford, Main street, claiming that the same was in violation of a certain ordinance which had been passed by the village council blocking that portion of the village and providing for fire limits there, under a statute which authorized them to do so. The ordinance is as follows:

“Bedford, Ohio, Oct. 25, 1893. Ordinance to block square: Whereas, a petition signed by the owners of two-thirds of the real estate on the square bounded by Main, Willis and North Park streets, has been presented to the council, praying for the blocking of said square against the erection of wooden buildings thereon above the height of ten feet, and a plat of said square has been filed with the village clerk, therefore, section 1—Be it ordained by the village council of the incorporated village of Bedford, that the said square be, and the same is hereby declared blocked, and the erection of any wooden buildings thereon of more than ten feet in height is hereby prohibited. Section 2—And this ordinance to be in force and take effect from and after its passage and legal publication."

The ordinance was passed October 25, 1893, and was published for the required length of time in the paper of general circulation in the village.

* For a later decision in suit on injunction bond, by Strimple, J., in this case, see post, 346.

on

22 S. & C. P, Vol. 10.

Cuyahoga Common Pleas.

The section of the statute under which the council attempt to act in this matter is sec. 2473, Rev. Stat. To regulate the erection of structures, etc.

“The council shall have power to regulate the erection of houses and business structures, and on the petition of the owners of not less than two-thirds of the ground included in any square or half square, prohibit the erection on any such square of any building, or addition to any building, more than ten feet high, unless the outer walls be made of iron, stone, brick, and mortar, or of some of them, and to provide for the removal of any building or additions erected contrary to such prohibition.”

There are several questions in this case, before we get to the one upon which I shall decide it; but I will only just simply suggest them. There is one question that is right at the outset, whether or not the remedy by injunction is the proper remedy in this case; whether or not that is a method which courts have any right to enforce, or whether that is the proper method of enforcing provisions of that kind. But as I have that question involved in a much more serious case than this, and as it was not argued, I will not say anything on the subject. But I will simply say that in my judgment that is one of the important questions in the case.

The provision of the statute is, first, that the owners of not less than two-thirds of the ground included in any square, may petition, etc. That provision is jurisdictional, and that petition of the owners must exist before the council has a right to act. Without any objection to the testimony, the issue taken upon this petition was one broad enough, by the answer, to bring in question the validity of this ordinance, and some testimony was given upon that point.

It appears that the whole number of feet in this square thus blocked by this ordinance was 113,400 square feet. Two-thirds of that would be 75,600 square feet. Of this number 16,928 square feet were signed by the railroad company, by the general manager, Mr. Wardwell, who was also at the same time one of the receivers. And it is claimed that he had no authority thus to act under his powers as receiver. Well, at the time it did not strike me very seriously; but the more I have looked at it the more seriou-ly I have doubt as to his authority to sign for the railroad company a grant of that kind. It affects what might be a valu. able privilege, what might be a serious impairment of a right. The statute says the owner must sign; and while I do not suppose it means by that one who has the absolute, complete, unrestricted ownership, I suppose it means one who has such power and control over it that he has the right, at least for the time being, to quality, modify, aud restrict by his act in a legal way the use of that propertvi

Eight thousand seven hundred and eighty square feet was signed by Mrs. Comstock. While the records ere pot luced, without any objection, the testimony went in and it was so considered that she was the

Bedford (Vil.) v. Tarbell.

widow of Mr. A. H. Comstock, deceased, who died seized of the legal title of this property, being the homestead, she occupying it at the time and undoubtedly having her dower interest. I do think that as to her dower interest she was the owner in the sense provided by the statute, and had the right to sign it. But I cannot see how, on the testimony, she had any right as to the other two-thirds. She was not the owner; she did not on the face of the petition seek to sign as agent. There was no testimony showing that she had any authority from the heirs to sign for them. And while I can perfectly well imagine that it would be perfectly in harmony with their wishes, yet in the absence of any testimony authorizing her to represent them, I think the court must come to the conclusion that she signed simply for herself, to the extent to which she had any power to bind or affect that property. That would leave less than two-thirds of this property.

It is said as to Mr. Tarbell, that he signed the petition and presented it himself. Mr. Foster did not. I do not think in a matter of this kind that that is sufficient. This is a jurisdictional matter; it is one which is required by the statute. The statute has not conferred upon Mr. Tarball any right to abrogate it or waive it, or dispense with it, no more than upon any other member of the community. He says that he did not procure all these signatures; that he took what appeared upon the face of it himself, and presented it as it was signed, to the council. And I do not think that ought to bar him from setting up what would be a serious matter affecting the validity of this ordinance. а

But there is another objection, in my mind, to this ordinance. It has been more impressed upon my mind by attempting to solve the problem in the case on the testimony, as to what constitutes a compliance with it. Now, it appeared that they erected a wooden building substantially; the whole plan and purpose and design of it made it a complete wooden building, finished as they intended to finish it. It would not have required any addition to it whatever to have made it complete and finished. Then they took and put on the outside of it a sheeting of roofing steel or roofing iron. There was some testimony as to the quality or character of it, but as far as this question is concerned it did not affect it. Then the question comes, was that a wooden building, covered with iron of this character ?

Well, now, the statute, do not authorize, in my judgment, as sweep ing an ordinance as is passed here. This ordinance prohibits the erection of any wooden building. The statute says, any wooden building whose outer walls are not made of iron, stone, brick, cement or mortar, or some of them. Now, I think that the contemplation of this section of the statute-for this is the power that they got

that the council should designate something of character, of some kind, and not make a sweeping ordinance prohibiting the erection of wooden buildings. It might be that this building would

was

some

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