Peoples' B. & L. Ass'n v. Hanson, Treas., et al. was received by G. R. Harms as a payment on his judgment in that amount. J. D. Brannan, for the Franklin Bank. Gustavus H. Wald and L.J Crawford, for C. M. Nagle, assignee. C. L. Raison, Jr., for G. R. Harms. DOW TAX LIENS. [Ashtabula Common Pleas, December 20, 1897.] PEOPLES' BUILDING & LOAN ASS'N V. JOHN HANSON, TREAS., ET AL. 1. PETITION OF COUNTY TREASURER IN ACTION TO ENFORCE LIEN FOR DOW TAX, In enforcing the lien for the Dow Tax, it is sufficient for the county treasurer to allege in his petition, that the tax stands charged on the duplicate against the premises-describing them--the amount thereof, and that the same are un paid. 2. LIEN FOR Dow TAX IS SUPERIOR TO PRIOR MORTGAGE LIENS. The lien for the Dow Tax is superior to prior mortgage liens for the amount of tax only which the act, in force, called for at the time the mortgage lien was created. 3. PRIORITY OF LIENS UNDER THE AMENDED Act of FEBRUARY 20, 1896. Under the amended act of February 20, 1896, in which the amount of the tax was raised from $250 to $350, the lien is superior only to prior liens which became liens before the passage of the amended act, and while the original act was in force, for the sum of $250 and the penalties and interest thereon; but the tax for the extra $100 is valid, against the person, upon whom it was assessed, and the lien therefor is superior to all liens created after its passage. HOWLAND, J. The question involved arises under the Dow law. The plaintiff brings this action, to foreclose two mortgages. The first was executed by the defendant, John Hanson and wife, and became a valid lien on January 10, 1894, upon the premises therein described; the second, on March 1, 1894. The other defendants have filed cross-petitions, seeking to foreclose liens and to determine the priority thereof; the defendant, Newell & Son, to foreclose a mortgage, which became a valid lien November 18, 1896; the defendant, Harrington, to foreclose liens upon certificates of sales for taxes, for the years 1893 and 1894, which became liens on the day preceding the second Monday in April of each of those years, sec. 2838, Rev. Stat.; the county treasurer to foreclose a lien which attached to said premises, for a Dow tax, for the year 1896, as of the fourth Monday in May of that year, sec. 2, Dow law. The defendant, Hanson, has filed an answer to the petition, and to the cross-petition of Harrington. To those answers, replies have been filed in each case. No other pleadings have been filed. The case has been heard and submitted. We find upon the issues between the plaintiff and the defendant, John Hanson and wife, in favor of the plaintiff; that the amount due the plaintiff is secured by said mortgages, which became valid liens as herein before stated. We find upon the issues between the defendants, Hanson and Harrington, in favor of Harrington. There is no answer to the cross-peti Ashtabula Common Pleas. tion of the county treasurer. The question is raised, by the defendants, Hanson and Harrington, by objection in argument, that the treasurer has not stated sufficient facts in his cross-petition, to entitle him to any relief. It is a short and very brief pleading-was drawn under the provisions of sec. 1104, Rev. Stat., which are made applicable to the enforcement of the lien in collecting the Dow tax-secs. 4 and 7 of that act. It is provided in sec. 1104: "That the treasurer having made proper parties, it is sufficient for him to allege in his petition that the taxes and assessments stand charged on the duplicate, against said premises-the amount thereof that the same are unpaid, and he shall not be required in the petition, to set forth any other or further special matter relating thereto." The form of this cross-petition is therefore made, by the express provisions of that section, sufficient in this case, to entitle the treasurer to the relief therein asked. It is claimed in argument, that the tax lien does not extend back of May 4, 1896, when it first attached as a lien, and therefore is subject to the prior mortgage liens of the plaintiff. The question, whether a mortgage might be made under such circumstances, that it would be held in equity, to be superior to a subsequent lien for a Dow tax-though argued -is not raised in this case. If such a defense could, under any circumstances be maintained in equity, we hold the burden would be upon the party claiming it, to plead and prove the facts relied upon to sustain it. The amount mentioned in the Dow law is an assessment upon the traffic in intoxicating liquors, which is to be collected as a tax. Hipp, 38 O. S., 199; State v. Frame, 39 O. S., 399; Adler v. Whitbeck, 44 O. S., 539. State v. The contention in this case is,—did the lien for the Dow tax of 1896, which became a lien as of the fourth Monday of May of that year, take precedence over the plaintiff's mortgages, which became valid mortgage liens more than two years prior to the time the tax lien attached to the mortgaged premises? All laws in force, at the time and place a contract is made, and where it is to be performed, which in their nature are applicable, enter into and become a part of the contract. Walker v. Whitfield, 16 Wallace, U. S., 314; Insurance Co. v. Leslie, 47 O. S., 409, page 414; Simpson v. Servis, 2 O. C. D., 246. Sections 2838, 2853, 2854, 1104, 2285, 6044 and 6090, Rev. Stat., are each applicable and were in force at the time the Dow law was enacted, and when each and all the mortgages mentioned were executed and became liens. The Dow law and the plaintiff's mortgages are, therefore to be construed with these sections of the statute. Sections 6044 and 6090 provide: "That taxes and assessments and the liens for them, are preferred over liens securing the claim of general creditors." Sec. 2285 provides: "That special assessments shall be payable by the owners of the property assessed, by the time stipulated in the ordinance, and shall be a lien from the date of the assessment, upon the lots assessed." The assessments under this section are given precedence over prior liens by mortgage for purchase money. Brewing Co. v. Westmeier, 2 O. C. D., 555. Section 2838 provides: "The lien of the state for taxes levied for all purposes in each year, shall attach to all real property subject to such taxes on the day preceding the second Monday of April annually, and shall continue until such taxes, with any penalty which shall accrue thereon, shall be paid." 2853 provides: "That any lienholder may pay Peoples' B. & L. Ass'n v. Hanson, Treas., et al. the taxes, so far as the same are a lien upon the mortgaged premises, and hold a lien therefor preferred to all other liens." Section 2854 provides: "That in all judicial sales the court shall order the taxes and penalties, and interest thereon, to be discharged out of the proceeds of said sale." Sec. 4, Dow law, provides: "That on failure of the county treasurer to make the amount due and unpaid thereon by levy, or any part thereof, the county auditor shall place the amount due and unpaid upon the tax duplicate, against the real estate, in which the traffic is carried on, and the same shall be collected as other taxes and assessments on said premises." Sec. 7, Dow law, provides: "That if the tax is not paid when due, the county treasurer is directed to proceed under sec. 1104 to enforce the lien therefor upon the real estate." Sec. 1104 provides: "That the county treasurer may enforce the lien for the tax or assessment, by a civil action, in his own name, as treasurer, for the sale of said premises, in the court of common pleas of the county, without regard to the amount claimed, in the same way mortgaged liens are enforced. The proceeding prescribed in that section, to enforce the lien, is the "Civil Action" of the code. The proper parties therein referred to, are those required by secs. 5006, 5007 and 5013 of the code. The Dow tax for 1896 had attached, and was a valid subsisting lien, upon the mortgaged premises, at and before this action was commenced. The county treasurer, was, therefore, not only a proper, but he was a necessary party to this action-he has filed his cross-petition, which we find is in full compliance with the provisions of sec. 1104, which provides: "That the court shall order a sale of the premises, and order the tax penalties and interest thereon, to be first paid out of the proceeds of the sale." By the sections referred to the state is not only given a lien, for all unpaid taxes, but that lien is given precedence over all others. In the civil action in which all persons holding liens are made parties, under section 1104 the court is required to order a sale of the premises, and to order the proceeds of the sale to be first applied to the payment of the lien for taxes; thereby giving a lien, for any tax or assessment, precedent over all other liens, whether prior or subsequent thereto. The question is also raised in this case, whether the act amending the Dow law is applicable to this case, and if so, to what extent and how. The amending act was passed more than two years after the execution of the plaintiff's mortgages, and before the execution of the mortgage, to Newell & Son. In the amended act the amount of the assessment was increased from $250, (which was the amount in the original act at the time the plaintiff's mortgages were executed,) to $350. That the defendant, Hanson, is personally liable for the whole amount of $350, under the Amended Act cannot be denied or controverted; but does the $100 increased assessment in the amended act, date back and take precedence over the plaintiff's mortgages, which became valid liens two years and more before the passage of the amendatory acts; if so, the rights of the plaintiff under his mortgages could not be determined by the laws in force, when the contract for these loans was made; but was subject to the contingency of any increase of assessments, and a corresponding reduction of his security by subsequent legislation. If $100 can be legally legislated out of the security for his claim, then other reductions may be made in that way without limit. The language used in the amending act does not justify such an application of it-there is nothing in the act to indicate that the legisla Ashtabula Common Pleas. ture intended to give to it, any retrospective operation-such a construction would give to the act a retroactive effect impairing the obligation of the plaintiff's contract, which is prohibited by sec. 28, Art. II, of the Constitution. A retroactive law, which is prohibited by sec. 28, Art. II, of the Constitution may be defined to be a law, which by its terms, takes away or impairs vested rights acquired under existing law; or creates a new obligation; or imposes a new duty; or attaches a new disability; or an additional burden in respect to transactions, or conditions already passed. Braden v. Holden, Adm'r, 15 O. S., 207, p. 210. All laws intended to effect the conduct or acquisition of rights by the citizen, should have a prospective application only. Gazer v. Prout, 48 O. S. 106. We therefore hold that the amount of the assessment which takes precedence of the plaintiff's mortgage liens is governed by the act, in force at the time the mortgages were executed, and the contract for the loan was made. The lien of the county treasurer attached to said premises as of the fourth Monday of May, 1896, and takes precedence over the prior mortgage liens of the plaintiff, which became valid liens two years and more prior thereto, but it is limited to the amount of $250, contained in the original act, and the penalties and interest thereon to the first day of this term of court. The lien of the defendant Harrington, and of the county treasurer, are both for taxes-Harrington's is the first in time, and therefore is the first lien-that of the county treasurer for $250, penalty and interest thereon, is the second—that of the plaintiff upon the first mortgage described in the petition is the third -that for the second mortgage is the fourth-that of the county treasurer for the increased $100 under the amended act is the fifth lien--that of Newell & Son mortgage, is the sixth lien. It is therefore ordered that the real estate described in the petition be sold that out of the proceeds of the sale the costs of this proceeding be first paid, and the liens in the order of their priority as herein found and stated be paid, and the balance, if any, be brought into court to await the further order thereof. To which holding the plaintiff, by his attorneys, and the defendant, Newell & Son, excepted. Hoyt & Munsell, for plaintiff. Geo. D. Parker, for defendant, Hanson. Theodore Hall, for defendant, Newell & Son. H. E. Starkey, for county treasurer. John Harrington, for defendant, Harrington. Cheney v. Ketcham et al. EXPULSION FROM CLUB-INJUNCTION. FRANK J. CHENEY V. GEORGE H. KETCHAM ET AL. 1. EXPULSION OF A MENBER FROM A CLUB-BOARD OF TRUSTEES CONSTITUTES THE FORUM FOR SUCH TRIAL. Where the by-laws of an association incorporated under the laws of this state, but not for profit, provide that the board of trustees might expel a member "for any conduct which in the opinion of the board is improper or prejudicial to the welfare and reputation of the club." Held, that such board of trustees had the right, when these charges were filed and it was its duty to proceed to the trial of the charges made against the plaintiff in accordance with the provisions of the by laws. 2. BOARD OF TRUSTEES HAS NO RIGHT TO EXCLUDE SUCH MEMBER FROM THE PRIVILEGES of the Club. In the absence of such trial the board has no right to exclude such member from any of the rights and privileges of membership in such association. 3. THE PROSECUTING MEMBER CANNOT ACT AS JUDGE OR VOTE UPON ANY ISSUE AS TO THE GUILT OF SUCH ACCUSED MEMBER. Where a member of such association files charges under its by-laws against another member and such prosecuting member sat and voted in favor of expulsion with the board of trustees: Held, that the prosecuting member could not act as a judge or vote upon any issue as to the guilt or innocence of the accused. 4. REMEDY IS BY INJUNCTION. Where such member has been expelled from such association his appropriate remedy is by injunction. PRATT, J. STATEMENT OF CASE. This action is brought by Frank J. Cheney, as a member of the Toledo Club, against a majority of the board of trustees, the steward, secretary and assistant secretary of the Toledo Club. The club itself is not made a party. The petition alleges that the club is a corporation under articles filed August 31, 1889, the purpose for which organized being alleged in the petition to be for acquiring and maintaining a club house, furniture and other appurtenances, for the use of the corporation, and that it should have a capital stock of thirty-five thousand dollars, in shares of one hundred dollars each. That the plaintiff was one of the original subscribers and one share of stock was issued to him July 3, 1890, and ever since owned by him; that the club property is designed and used as a place for its members to rest and procure refreshments at reduced prices. It then charges that the defendants, by wrongful combination and conspiracy have excluded the plaintiff from the use and enjoyment of the property of the club and threaten and intend to continue for all time in the future to exclude him therefrom, to his great and irreparable injury. The prayer is for an injunction. า The defendants file a joint answer, admitting that they are officers of the club as charged, and that the plaintiff became a member of the same, but allege that he hs not been such member since April 12, 1897. a They deny that the acquiring of property by the club was its controlling purpose, but allege that it was organized for the purposes of amusement, social culture and mutual improvement of its members, and that the acquiring of property was incidental only to such purposes, and that the corpo |