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Receivers — Sales.


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.


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.

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.


In replevin against 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 hond, 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.

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 one
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
hy 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.

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.


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

4155-2. Rev.
Stat., relating to conditional sales;
there must be evidence that the title
is to remain in the vendor. Speyer
& Co. Baker, 59 Ohio St., 11, dis-
tinguished. Cavanaugh V. Bloom.



Schools -- Statutes.



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.

The constitutional guaranty of

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

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 origi-
nally enacted. During that time the
word "may" did not have the force
of "must" or "shall."

Where a board of education, in
the exercise of this authority con-
ferred upon it by law, has seen fit
to pass a resolution prohibiting the
reading of the Bible and prayer or
other religious instructions in the
school, its action is final and cannot
be reviewed by the courts. Board
of Ed. v. Pulse.

The management of public
schools is by express statutory pro-
visions under the exclusive control
of boards of education. Each board
is required to "make such rules and
regulations" for the government of
the schools under its control as "it
may deem expedient and necessary.”

Where the board has made
rule, prohibiting such religious ex-
ercises and a teacher, after due no.
tice, refuses to obey the rule and



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.

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.

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 re-
quire that the board should assume
the whole responsibility in the mat-
ter, and either dismiss the teacher
or rescind the rule.



Arrangement between the sher-
iff and parties to the suit as to sale
of property levied upon, is not in.
valid where no bad faith is shown.
Hicks v. Grussel.

Possession by a sheriff's keeper
constitutes possession by the sheriff.


The act 93 0. 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 0. 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.

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.

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.


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. ney.
ertheless the injury is not different
in kind and is therefore damnum
absque injuria. Mitchell Furniture
Co. v. Railroad Co.



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.

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.

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.

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.

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


A street car should be stopped
long enough to allow a passenger
thereon to alight in safety. Dussel
v. Street Rd. Co.

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.

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

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 proper ex-
ercise of police power, and is, there.
fore, void. Lewis V. Street Ry.

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.

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.

The ordinance of Cincinnati
passed February, 1879, limiting the
speed at which street cars may be

Street Railways – Taxation.

[blocks in formation]


A person whose returns of per-
sonal property for taxation

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

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-

ation or relieve the company from
taxation of such assets or personal
property in Ohio.

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.,

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 de-
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.

Credit balances which an Ohio
bank has within its correspondent
banks in other states, against which
it may draw sight drafts, and the
right of withdrawal is not subject
to greater limitations than by the
usages of business exist as to general
deposits in banks carried by individ-
uals, are within secs. 2730 and 2739
Rev. Stat., held to be money and tar.
able without deduction and should
be returned as cash.

The word "cash" is synonymous
with the word “money" as used in
sec. 2730, Rev. Stat., in which the
meaning of the latter word is de-

Sections 2758 to 2769, Rev. Stat.,
are intended to operate uniformly
and impose the same burden upon all
banks and bankers, whether national

Taxation - Telegraph and Telephone Companies.

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.

The legislature, by a definition
of the constitutional phrase, "prop-
erty employed in banking” cannot
change the meaning thereof or by
such means equalize the burdens of
taxation upon banks and individuals.

While greenbacks are not gov.
ernment bonds, in the popular or
proper sense, they were still non-
taxable securities of the United
States and banks were, prior to Au-
gust 13, 1894, entitled to exclude
them from the monthly average of
cash returned for taxation. Subse-
quent to that date, by act of congress,
their privilege of exemption was
taken away, and they should now be
returned with the average amount
of cash for taxation.

The provisions of the federal
constitution prohibiting laws im-
pairing the obligations of contracts
does not operate to deprive congress
of the power to withdraw the qual-
ity of exemption from taxation
from greenbacks. The act of August
13, 1894, for such purpose, relates
to such notes only as are “payable
on demand and circulating or in-
tended to circulate as currency; and
as long as the holder can on demand
obtain the money promised in the
note, the government fully keeps the

A failure by a bank to return
balances in the hands of other banks
as "cash," as required by the force
of the definition of "money" in sec.
2730. Rev. Stat., above referred to,
and, without intent to deceive, fol.
lowing an established custom among
banks, returning same as "bills re-
ceivable,” which would be correct
but for the statutory definition re-

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.

Although the court is of the
opiuion 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.

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."

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.



The construction and mainte-
nance of a telegraph or telephone
line upon a highway is a new and ad-
ditional burden upon the fee, to
which, when the highway was estab-
lished, it was not contemplated it
would be subjected, and for which
the owner is entitled to additional
compensation. Denrer v. Telephone


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