A receiver should not pay out money as profits arising from the receivership, without retaining a sufficient amount to meet future fix- ed charges and allowing for possi- ble contingencies, such as a falling off of future receipts. Ib. RELIGIOUS ASSOCIATIONS-
A member of such church is not responsible for its debt unless he in some way sustained or acquiesced in their creation. Males V. Murray. 373
A member of an unincorporated religious society who sues the other members on a note in which there is a clause pledging the property of the church in payment, is not enti- tled to a personal judgment against the defendant members nor to a de- cree declaring the debt a lien, but there must be a reference of the cause for an accounting and a find- ing as to the circumstances under which the church property was bound for the debt. Meyer V. Lipski.
In replevin against a sheriff, the appearance of the defendant for the purpose of obtaining an order to sell the property pending litiga- tion, and to make new parties, and for the purpose of giving a redeliv- ery bond, being only steps consistent with his duty to retain possession of goods to be sold on execution, does not amount to a waiver of a jurisdictional defense. Geiser V. Heim. 729
The failure by plaintiff in plevin to set forth in the affidavit that the property is not claimed un- der a title acquired mediately or im- mediately by transfer from from whom such property had been taken by an execution order or pro- cess, as provided by secs. 6613 and 5815, Rev. Stat., as amended, 88 O. L., 273, is a jurisdictional defect. Ib.
In the ordinary action of replev- in, where the property is confessedly personal, and is susceptible of deliv- ery, by the officer to the plaintiff on the giving of a bond, or by the of- ficer to the defendant on the giving of a counter bond, and where all the grounds for equitable relief which the defendant has, he may set up as a defense in the replevin suit, he has an adequate remedy at law and in- junction will not lie. But where the question whether the property is real or personal is in dispute, as in
case at bar, and where the property, consistingly largely of pipes buried in the ground, cannot be appraised, examined and delivered without severing the plant and cutting off the supply of gas, it ought not to be treated as personal and detached by the officer holding the writ of re- plevin until the right to an injunc tion is determined. And while the injunction prayed for in the cross- petition restraining the plaintiff from taking possession of the prop- erty may in effect include a suspen- sion of the replevin proceedings, yet under the prayer for general relief the injunction should be made broad enough to include a stay of all pro- ceedings in the replevin action. Ib.
While it would have been proper for the city solicitor, under the facts stated, to have included in his ac- tion in behalf of taxpayers the whole plant and to have asked for an in- junction against the prosecution of a replevin suit brought by the pur- chasers to recover the outside por- tion of the plant until the validity of the sale should be determined, it is also proper for the city solicitor to bring an action for injunction as to the sale of the inside portion of the plant and file a cross petition in the replevin suit, as an application under sec. 1777, Rev. Stat., and, after setting out proceedings of the council, ask for an injunction re- straining the purchaser from taking possession and that the sale be de- clared void. Kerlin Bros. Co. V. Toledo. 509
In replevin, in Ohio, defendant by giving a redelivery bond admits that the property taken is the prop- erty mentioned in the writ, and when obliged to return the property, under a condition of the bond, must return the identical goods taken un- der the writ and cannot escape lia- bility by saying that such goods are not the goods mentioned in the writ of replevin. Stern-Bloch Co. V. Heinsheimer. 724
The mere fact of a sale of chat- tel property on installments is not sufficient to bring such a sale with- in the terms of sec. 4155-2, Rev. Stat., relating to conditional sales; there must be evidence that the title is to remain in the vendor. Speyer & Co. v. Baker, 59 Ohio St., 11, dis- tinguished. Cavanaugh V. Bloom. 222
See LIMITATION OF ACTIONS.
The word "may" means "must" or "shall" only in cases where pub- lic interests or rights are concern- ed, or where the public or third per- sons have a claim de jure, that the power shall be exercised, or where something is directed to be done for the sake of justice or the public good. Board of Ed. v. Board of Ed. 459
The constitutional guaranty of "an efficient system of common schools throughout the state" does not impose an obligation upon town- ship boards to pay the tuition of a few pupils who elect to enjoy the advantages of a high school outside the township of their residence, either in the same or an adjoining county. Ib.
Under the Boxwell law (sec. 4029, Rev. Stat.), in which, when first introduced, it was provided that the high school tuition of certain graduates "shall be paid by the board of education of the township in which such applicant resides," and which was changed by the com- mittee to read "may" instead of "shall," and so enacted, in which form it remained for eight years, or until 1899, when the legislature sub- stituted the word "shall" for "may," a school board is not bound to pay tuition in a high school in an adjoin- ing county accruing during the time when the law remained as origi- nally enacted. During that time the word "may" did not have the force of "must" or "shall."
continues such exercises, such act of insubordination on the part of the teacher is a violation of her con- tract for which she may be discharg ed. Ib.
A person in accepting employ- ment as a teacher in the public schools agrees to perform her labors and duties under the control and di- rection of the board of education and in conformity to such lawful rules and regulations as the board may adopt. Ib.
In such case a court of equity ought not to interfere by injunction to restrain the teacher from contin- uing the religious exercise in viola tion of the rule. Considerations of public policy and convenience quire that the board should assume the whole responsibility in the mat- ter, and either dismiss the teacher or rescind the rule. Ib.
The act 93 O. L., 657, to author- ize cities of the first class to issue bonds to pay for property appropri- ated to open, extend, widen or straighten streets, which does not appear (as it appears in 93 O. L., 657, the words "or its successors" inserted by amendment, are omit- ted.) in the office of the secretary of state or on the journal of either house, is void under the rule stated. Burke v. Cincinnati. 542
Where a law passed by the gen- eral assembly does not appear in the secretary of state's office, nor on the journal of either house, it must fail as a law, not from any defect in its passage, but because there is no cer- tainty as to what the law is or was. Ib.
That which is plainly implied in the language of a statute is as much a part of it as that which is expressed. Gorham v. Steinau. 131
In so far as acts of the legisla- ture are irreconcilable, the one signed last must prevail; but to those parts which do not antagonize each other, and are merely supple-
Statutes Street Railways.
mental, effect must be given to the will of the legislature. State ex rel. v. Halliday, 63 Ohio St., 165, follow- ed. State v. Lewis.
Every municipal corporation is clothed with power to protect itself, and the council has the care, super- vision and control of all public high- ways, streets, avenues, alleys, side- walks and public grounds, and none of these can be used for extraordi- nary purposes without the consent of the council. Morrow County Illum. Co. v. Mt. Gilead. 235
An ordinance passed by the council of a municipal corporation which grants a franchise to use the streets and alleys of the municipal- ity for the purpose of supplying electric light and power to citizens, and also contains a contract for the lighting of the streets and alleys at a stipulated price, is in conflict with sec. 1694, Rev. Stat., in that it con- tains more than one subject and is for that reason void. Ib.
An ordinance granting a fran- chise to an electric light company, containing a provision, which was part of the bid for the contract, that the contract shall not be binding upon the grantees unless they are granted the exclusive use of the streets for lighting purposes, is with- in the rule above stated and the or- dinance is invalid. Ib.
The streets of a city may be used for purposes authorized by statute in furtherance of the convenience and welfare of inhabitants and not substantially interfering with the public easement of right of travel, but when it is sought to couple with such partial appropriation' a stipu lation that no further use of unoc- cupied portions of the street shall thereafter be permitted or made for similar purposes, which is not an ex- ercise of, but an attempt to prohibit appropriation, and when the effect is to create a monopoly, the power of a municipal corporation then to di- vest itself of authority conferred as a public agent must be clearly shown. Ib.
A mere delay in travel which may follow as a consequence of the lawful construction of railroad tracks in a street, is not a damage to property not directly abutting up- on the street where the tracks are laid, for the reason that whatever #49 S. & C. P. Vol. 10
injury is suffered thereby is an in- jury suffered in common by the en- tire community, and even though one piece of property may suffer in a greater degree than another, nev- ertheless the injury is not different in kind and is therefore damnum absque injuria. Mitchell Furniture Co. v. Railroad Co. 218
A street car should be stopped long enough to allow a passenger thereon to alight in safety. Dussel v. Street Rd. Co. 631
An ordinance of a city making it the duty of conductors of street cars to assist passengers to alight may be considered by the jury in de- termining what actual assistance should have been given beyond stop- ping the cars for a reasonable time. Ib.
A passenger on a street car, in the absence of knowledge to the con- trary, and acting in good faith, is en- titled to presume that a street rail- way company will not be negligent in the performance of its whole duty, and will not expose such passenger to any hazard that reasonable care and prudence could fairly guard against. Ib.
The ordinance of Cincinnati, passed October 25, 1889, permitting street railroad companies to operate their electric cars at a schedule speed not exceeding ten miles an hour, is not only unreasonable, but subver- sive of the rights of the people in the streets, and is not a proper ex- ercise of police power, and is, there- fore, void. Lewis V. Street Ry. 53
There is no authority to justify the passing of an ordinance which could only be operative as an exercise of police power, for the purpose of meeting the demands of the public for rapid transit, and thus making the use of the public streets a con- stant menace to life, limb and prop- erty. Ib.
The right of the authorities of a municipal corporation to legislate on the question of speed of street cars only exists by reason of the fact that their police power is called into ex- istence for the protection of indi- viduals and their property, when le- gally using the streets. Ib.
The ordinance of Cincinnati passed February, 1879, limiting the speed at which street cars may be
Street Railways - Taxation.
STREET RAILWAYS-Continued.
drawn in the streets of the city to six miles an hour, applies as well to electric cars as to horse cars, al- though at the time such ordinance was passed no electric cars were in use; and said ordinance is now in force. Ib.
A person whose returns of per- sonal property for taxation the county auditor has reason to believe are false and against whom he is proceeding under sec. 2281-2, Rev. Stat., is not required to appear be- fore the auditor, in response to the notice giving him an opportunity to be heard, but if such person fails to appear, the auditor may proceed in his absence to ascertain from the best evidence available the true amount of property which such party should have listed and have same entered on the duplicate for collec- tion. Ohio Farmers Ins. Co. v. Hard.
Where an insurance company, in explanation of and to justify its returns of personal property at much less than its full value, claimed that it was the rule in the county and generally in the state to tax per- sonal property at about sixty per cent. of its true value, the court held, that while the constitution and laws of the state require all property to be taxed at its true value in money, notice might be taken of the rule in question: and that where the return, if it were permissible to return such property at sixty per cent. of its value, would be a fair one, the court has power to remit the penalty, and permit the company to pay simple taxes on the amount of property which it failed to return.
An Ohio mutual insurance com- pany, also doing business in other states, should under sec. 2744. Rev. Stat., list for taxation in Ohio not only its property within the state, but also its assets, whether in the form of notes or cash balances in the hands of agents in other states. The fact that such company, in order to do business in other states, may be subjected to a franchise tax or a tax for permission to do business in a state, does not constitute double tax-
The fact that the sworn annual reports of a mutual insurance com pany to the state commissioner of in- surance place the assets of the com- pany at a much higher valuation than the sum at which they were re- turned for taxation, the two reports being made by the same officers, who had complete and accurate sources of information, is proof that the com- pany was aware of the true value of its assets, and indicates, prima facie, a purpose to evade or escape taxa- tion; such returns, for these reasons and in view of the knowledge, as to property taxable in Ohio, required upon the part of those making re- turns for taxation, are SO grossly careless as to be false within the meaning of the statute as defined in Ratterman v. Ingalls, 48 Ohio St., 468. Ib.
The definition of money, as given sec. 2730, Rev. Stat., in the title on taxation, that it means "any surplus or undivided profits held by socie- ties for saving or banks having no capital stock, gold and silver coin, bank notes of solvent banks in ac- tual possession, and every deposit which the person owning, holding in trust or having the beneficial there in, is entitled to withdraw on mand" applies to banks as well as in- dividuals; under secs. 2 and 3, art. 12 of the constitution, what is money if the property of an individual, for the purpose of taxation, is and must be money if the property of a bank. Patton v. Bank. 321
or state, corporate or private; and contemplate the taxation of all banks upon the basis of their capital stock, surplus and undivided profits. But there is no constitutional require- ment that property employed by bankers, of different classes, should be taxed by a uniform rule, except that each must conform to the same standard and that standard is, "the burden of taxation imposed upon the property of individuals." Ib.
To the extent that sec. 2759, Rev. Stat., relating to banks, permits cash and cash items in possession to be included in the aggregate, from which deductions of debts are to be made, it is repugnant to the consti- tution and void.
ferred to, does not constitute a false return within the meaning of the word "false" as defined in Ratterman v. Ingalls, 48 Ohio St., 468; such re- turns are incorrect. Ib.
Although the court is of the opinion that a reasonable construc- tion of secs. 2781 and 2782, Rev. Stat., would not limit the investigation to the current year in case of merely in- correct returns and extend it to a period of five years in case of false returns, it is so held, on the author- ity of Ratterman v. Ingalls, 48 Ohio St., 468, and Probasco v. Raine, 50 Ohio St., 378. Ib.
Culpable negligence, in making returns of property for taxation, though there be no design to mislead and deceive, is sufficient to make a return "false." Ib.
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 re- turns and bring upon the duplicate all the taxes which the party mak- ing 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
Where the president of a bank, being required to exercise diligence in matters relating to taxation, and having failed to return greenbacks for taxation, admitted that some ru- mor of the repeal of the law grant- ing immunity from state taxation to greenbacks had reached him, the fact that he wrote to the representative from his district in the state legisla- ture as to whether the general assem- bly of Ohio had repealed a law of con- gress, is not diligence in acquiring knowledge from sources where in- formation is obtainable, which will relieve such president from the im- putation of culpable negligence or a false return. Ib.
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