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cer not authorized by law to take it is not obligatory on the bail. Branham v. Com. (1867) 2 Bush (Ky.) 3.

And sureties upon a bail bond taken without authority by the clerk of the court, out of court, are not liable, since, to authorize a judgment against the sureties on the bond, the bond must have been taken by an officer authorized by law to receive it. Chinn v. Com. (1830) 5 J. J. Marsh. (Ky.) 29.

And a bail bond taken without authority by the clerk of the court cannot be enforced against the sureties as a statutory bond. Wallenweber v. Com. (1867) 3 Bush (Ky.) 68.

The invalidity of a bail bond taken without authority by a sheriff for the appearance of a person committed to jail on a criminal charge, when shown by the sureties, constitutes a good defense to an action against them upon the bond. Rupert People (1894) 20 Colo. 424, 38 Pac. 702.

And in Pace v. State (1852) 25 Miss. 54, it was held that recovery could not be had against the surety in a bail bond taken by a sheriff without authority, because not a case in which he had authority to take a bail bond.

A bail bond taken in a criminal action by the sheriff without authority, because contrary to statute, is void, and the sureties thereon are not liable.' Basket v. Scott (1824) 5 Litt. (Ky.) 208. The court said that the main objection raised was that the bond declared on was void, and if that point was for the sureties, no other point need be noticed.

And in Bank of Buffalo v. Boughton (1839) 21 Wend. (N. Y.) 57, a bail bond executed by a late sheriff to be relieved from arrest on an attachment issued against him for not returning an execution was held void, under statutory provisions declaring that no sheriff or other officer shall take any bond in any other case or manner than such as are provided by law, and that any such bond otherwise taken shall be void, and a demurrer to the declaration on the bond

was sustained and the surety was held entitled to judgment.

A judgment against the sureties upon a bail bond taken by the sheriff was reversed in Shaw v. Com. (1863) 1 Duv. (Ky.) 1, on the ground that the bond was taken without authority, because the bench warrant upon which the accused was arrested, issued by the clerk of the court, was unauthorized.

And in State v. Mills (1830) 13 N. C. (2 Dev. L.) -555, the court affirmed a judgment in favor of the sureties on a bail bond taken by the sheriff without authority, from a prisoner committed to his custody before indictment found.

It was held in Governor v. Jackson (1849) 15 Ala. 703, an action against the surety on a bail bond taken without authority by the sheriff upon his arrest of a person for an offense punishable by imprisonment in the penitentiary, where the state's counsel suggested the death of the surety, that, the bail bond being palpably void, the state sustained no injury by the refusal of the lower court to permit the revival of the action against the administrator.

And in Antonez v. State (1855) 26 Ala. 81, an action against the surety on a bail bond of a person charged with felony after indictment taken by the sheriff without authority, the court said that the question as to the liability of the surety turned upon the legal sufficiency of the bond, and that that depended upon the power of the sheriff to take it, and held that the bond, as the sheriff had no power to take it, was no more than so much blank paper, and that a judgment against the surety rendered upon it was erroneous.

And in Blackman v. State (1859) 12 Ind. 556, an answer to an action on a bail bond against the sureties that the one who took the bond was not the sheriff, and had no authority to take the same, and it was by reason thereof void, was held good on demurrer and a judgment against the sureties was reversed.

And a bail bond taken by the sherwithout authority, because in the ab

sence of an order of the court fixing fect that when any person shall enter the amount of the bond or directing into any recognizance or obligation him to take it, is not binding upon the for the appearance of another to ansureties. State v. Clendennen (1851) swer for any offense, or who shall be 6 La. Ann. 744.

bound in any recognizance, bond, And a bail bond taken by the sher- or obligation to answer a criminal iff without authority, because the charge, and shall fail to produce the magistrate failed to indorse on the principal, it shall be the duty of the warrant of commitment the amount solicitor general to forfeit the recogof bail required, cannot, when for- nizance, bond, or obligation. feited, form the basis of a valid judg- A bail bond taken by a constable ment against the accused and his without authority in a felony case, sureties, the bond being void. Evans because without a judicial order fixv. State (1879) 63 Ala. 195.

ing the amount or directing the bail And a bail bond taken by a sheriff to be taken, was held void, and a dewithout authority in a felony case, murrer to the complaint in an action because the amount of the bail was to enforce it against the sureties was not indorsed on the capias by the upheld, in State v. Winninger (1881) clerk of the court, but by the pros- 81 Ind. 51. ecuting attorney, is void and cannot And in Ludlum. v. Wood (1806) 2 bind the sureties. State v. Schmidt N. J. L. 55, where a constable who (1918) - Mo. -, 200 S. W. 1071. had admitted a prisoner to bail with

A bail bond taken without author- out authority had a judgment recovity by the sheriff, because taken dur- ered against him for not producing ing the term without an order of the the prisoner, and thereupon brought court fixing the bond, is void and the an action against the sureties upon sureties are not liable. Turpin v. the bail bond, it was held that the act State (1919) 86 Tex. Crim. Rep. 96, of the constable in taking bail with215 S. W. 455.

out authority was an illegal act, and And a bail bond taken by a sher-. a judgment against the surety was reiff without authority, because the versed. amount of the bond was fixed by the And the sureties were held not liaclerk of the court, where the judge ble upon a bail bond taken by the was not shown to be absent from the

jailer in a criminal case, upon the county, was held nugatory and of no

ground that the bond was taken withbinding force on the sureties, who

out authority, in Com. v. Lee (1830) were only bound by the strict legal

3 J. J. Marsh. (Ky.) 698. effect of the instrument. State v.

The court, in the rest of the cases Woodward (1901) 159 Mo. 680, 60 S.

in this subdivision, assumed that the W. 1042.

sureties would not be liable if the But an instrument taken by the

bail bond was decided to have been sheriff without authority, for the ap

taken without authority. pearance of a person to answer a criminal charge, while not technical

Thus, there was no recovery ly a recognizance, is good as a bond against the sureties upon a bail bond or obligation, and the sureties there

taken without authority on are liable. Park v. State (1848) 4 - by a commissioner appointed by Ga. 329. In this case the court said a circuit court of the United States that while it is conceded that a sher- for a district within the state of New iff has no right to exact bail, yet if York, for the appearance for exthe person arrested voluntarily, and amination before himself at a future without coercion, submits to give the day, of a party accused of a criminal obligation, it will bind him and his offense against the laws of the sureties, and that the instrument was United States, in United States v. clearly a good statutory bond or ob- Case (1871) 8 Blatchf. 250, Fed. Cas. ligation under the statute, which was No. 14,742; conclusive upon this point, to the ef- - by a clerk of the court, in State

v. Caldwell (1894) 124 Mo. 509, 28 S. – by a sheriff, in term time, in a W. 4;

felony case, in Gray v. State (1869) - by a clerk of the district court, 43 Ala. 41; in Morrow v. State (1870) 5 Kan. - by a sheriff, because of his il563;

legal arrest of the accused in an- by a clerk of the court during other county, in Blevins v. State vacation, in Bunnell v. Com. (1921) (1876) 31 Ark. 53; 192 Ky. 592, 234 S. W. 187;

– by a sheriff, because taken from - by the clerk of a district court, one arrested in vacation for a conbecause taken in vacation, in State v. tempt offered to the circuit court, in Carothers (1860) 11 Iowa, 273; State v. Howell (1848) 11 Mo. 613;

by a county clerk, upon the fil- - by a sheriff, because taken for the ing of a complaint before an informa- appearance before the justice of the tion was presented to the county peace on a day specified in the warcourt, in Leal v. State (1907) 51 Tex. rant of arrest, for a misdemeanor Crim. Rep. 425, 102 S. W. 414; Ochoa which the justice had no jurisdiction v. State (1907) Tex. Crim. Rep. to try, in Jones v. State (1879) 63 -, 102 S. W. 415;

Ala, 161; by the clerk of the mayor of a by a sheriff, for the appearance city, sitting as an examining court, in of a person arrested for a criminal Lock v. Com. (1889) 11 Ky. L. Rep. offense, who had been committed to 399;

jail by the examining magistrate, in - by a deputy clerk of the city Cooper v. State (1861) 23 Ark. 278; court, in Dugan v. Com. (1869) 6 - by a sheriff, after a change of Bush (Ky.) 305;

venue had been ordered, in Harbolt – by a sheriff, because he had no v. State (1898) 39 Tex. Crim. Rep. power to take bail for the appearance 129, 44 S. W. 1110; of a person charged with a public of- - by a sheriff, on the order of the fense, in Keller v. Com (1853) 2 governor of the state pending the Monaghan (Pa.) 757;

granting of a pardon, in Louisiana v. - by a sheriff, in a murder case, in Fay (1852) 8 La. Ann. 490; Morrow v. State (1919) 86 Tex. Crim. - by a sheriff, from one who volRep. 354, 216 S. W. 1100;

untarily surrendered himself without — by a sheriff, because taken from being charged with any offense, bea prisoner who was committed be- cause it was the duty of the sheriff to cause the examining magistrate did take the accused before a magistrate, not know whether the offense was in State v. Miller (1869) 31 Tex. 564; bailable or not, in State v. Horn - by a sheriff, in a felony case, (1838) Meigs (Tenn.) 473;

after he had arrested the defendant - by a sheriff, because of the ab- and before taking him before a magissence of an order of the court to trate, in Short v. State (1884) 16 Tex. take the bond, in State V. Smith App. 44; (1857) 12 La. Ann. 349;

- by a sheriff, because taken for - by a sheriff, because taken with- the defendant's appearance forthout an order of the court admitting with in court, in Jackson v. State the accused to bail or fixing the (1854) 13 Tex. 218; amount of the bond, in State v. Ba- by a sheriff in a felony case, belize (1886) 38 La. Ann. 542;

cause taken before the accused had - by a sheriff, because taken after been brought before a magistrate, in the surrender of the accused by the Com. v. Phillips (1903) 116 Ky. 329, old bail, without any process or order 76 S. W. 118; of the committing magistrate, in — by a deputy sheriff, before the State v. Wren (1858) 21 Tex. 379; commitment of the prisoner, in State

- by a sheriff, because not taken v. McCoy (1873) 1 Baxt. (Tenn.) in accordance with the statute or the 111; mandate of the court contained in a - by a city marshal, in Frishe v. capias, in Busby v. State (1854) 13 Com. (1838) 6 Dana (Ky.) 318. Tex. 136;

G. V. I.

(116 Kan. 175, 225 Pac. 1029.)

L. C. MORGAN et al., Trustees of Marsh Foundation, etc.,

V.

ATCHISON, TOPEKA, & SANTA FE RAILWAY COMPANY.

[blocks in formation]

(116 Kan. 175, 225 Pac. 1029.) Taxes, $ 138 — exemption – foreign charity.

The exemption from taxation of the property of educational or charitable institutions, provided for in the Constitution and statutes, refers to educational and charitable institutions of Kansas, and not to those of another state.

(See note on this question beginning on page 634.] Headnote by HOPKINS, J.

PETITION for a writ of mandamus to compel defendant to transfer on its books certain stock standing in the name of George H. Marsh, deceased. Writ denied.

The facts are stated in the opinion of the court. Mr. Silas Porter, for plaintiffs : 189, 74 N. E. ; 203 U. S. 553, 51 L. ed. The Marsh Foundation is an educa- 314, 27 Sup. Ct. Rep. 171, 8 Ann. Cas. tional, benevolent, and charitable in- 137; Re Quirk, 257 Mo. 422, 51 L.R.A. stitution, and therefore all property (N.S.) 817, 165 S. W. 1062; Humpassing to it by will is exempt from phreys v. State, 70 Ohio St. 67, 65 the payment of inheritance taxes un- L.R.A. 776, 101 Am. St. Rep. 888, 70 der and by virtue of the laws of the N. E. 957, 1 Ann. Cas. 233; Carter v. state of Kansas.

Whitcomb, 74 N. H. 482, 17 L.R.A. Board of Education v. Illinois, 203 (N.S.) 733, 69 Atl. 779; Minot v. WinU. S. 553, 51 L. ed. 314, 27 Sup. Ct. throp, 162 Mass. 113, 26 L.R.A. 259, 38 Rep. 171, 8 Ann. Cas. 157; Re Fiske, N. E, 512; Alfred University v. Han178 Cal. 116, 172 Pac. 390; Re Frain, cock, 69 N. J. Eq. 470, 46 Atl. 178; Re 141 La. 932, 75 So. 847; Re Peterson, Hickok, 78 Vt. 259, 62 Atl. 724, 6 Ann. - Iowa, 166 N. W. 168.

Cas. 578. Messrs. William R. Smith, Owen J. Wood, and A. A. Scott for defendant. Hopkins, J., delivered the opinion

Messrs. Charles B. Griffith, Attor- of the court: ney General, and Donald W. Stewart, The action is one of mandamus Assistant Attorney General, for in

to compel the defendant to transfer tervener:

on its books certain stock now The Kansas statute exempting prop

standing in the name of George H. erty to or for the use of benevolent or charitable societies, or institutions, Marsh. The plaintiffs are the trusfrom the operation of the inheritance tees of the Marsh Foundation under tax law, does not apply to nonresident the will of George H. Marsh, debenevolent or charitable institutions. ceased, who died August 13, 1920, State ex rel. Taggart v. Holcomb, 85

being at the time of his death a resiKan. 178, 50 L.R.A.(N.S.) 243, 116

dent and citizen of the city of Van Pac. 251, Ann. Cas. 1912D, 800, 226 U. S. 599, 57 L. ed. 375, 33 Sup. Ct. Rep.

Wert in Van Wert county, Ohio. 112; Blakemore, Inheritance Taxes, & The state is an intervener. The 257; Gleason & O. Inheritance Taxn. question involved is whether a stat2d ed. 233; Ross, Inheritance Taxn. p.

ute, exempting property to or for 193, § 146; 37 Cyc. 1573; 26 R. C. L. § 197, pp. 226, 227; Re Prime, 136 N. Y.

the use of benevolent or charitable 347, 18 L.R.A. 713, 32 N. E. 1091; Re

societies or institutions from the opSpeed, 216 Ill. 23, 108 Am. St. Rep. eration of the inheritance tax law,

34 A.L.R.–40.

applies to those that are nonresi- turned over to the trustees of the dent of the state.

Marsh Foundation were 500 shares By the terms of his will, Mr. of the common stock of the defendMarsh, after making certain indi- ant company, of the par value of vidual bequests, bequeathed the re- $100 per share. The plaintiffs have mainder of his estate to trustees to heretofore made request and debe used to establish and maintain a mand upon the defendant to transhome and school in Van Wert coun- fer such shares of stock to and in ty, Ohio, for (1) the benefit of or- the name of the trustees of the phans and other children, residents Marsh Foundation. This the deof Van Wert county; (2) the bene- fendant has refused to do, unless fit of orphans and other children, and until the plaintiff shall pay the residents of northwestern Ohio, inheritance tax assessed upon the who, by reason of misfortune or transfer of such stock by the inheritfor any other cause, are denied the ance tax commission. opportunity to secure home train- It is the contention of the plaining, education, and instruction; and tiffs that the Marsh Foundation is (3) the benefit, if the income and an educational, benevolent, and capacity of the school warrant, of charitable institution, and that, such other children as may be re- therefore, all property passing to it ceived into the school alone, who by will is exempt from the payment may not be dependent upon the of inheritance taxes. On the other foundation for a home, the Van hand, the state, while not denying Wert county pupils always to be the worthiness of the charity of the given preference in the matter of Marsh Foundation, contends that it admission. It was further provided was not the intention of the legisthat, if the capacity of the school lature to exempt foreign charitable warrant the admission of pupils of institutions from taxation. Van Wert other than orphan chil- Section 1 of article 11 of the Condren, the board may admit such, and stitution, in part, reads: “But all may also admit orphans or other property used exclusively for state, children from other counties of county, municipal, literary, edunorthwestern Ohio; that if a child cational

purposes from any such county other than shall be exempted from taxation.” Van Wert county, by reason of hav- The statute (Rev. Stat. § 79ing property or friends, is able to 1501) in relation to assessment and make or secure payment to the taxation of legacies and successions, foundation of a small amount to cov- provides:

provides: "All property, corporeal er the maintenance of such child, or or incorporeal, and any interest any part of such expense, then a therein, within the jurisdiction of charge may be exacted; otherwise the state, whether belonging to the the board may admit such child free inhabitants of the state or not, of charge; that, if the capacity is which shall pass by will or by the greater than the needs of the vari- laws regulating intestate succession, ous classes of children mentioned, or by deed, grant or gift made in then the board, under such terms as contemplation of death, or made or it thinks advisable, may admit pu- intended to take effect in possession pils, without restriction as to resi- or enjoyment after the death of the dence, for manual or other training, grantor, to any person, absolutely who are receiving their common- or in trust, except in case of a bona school education in other schools, fide purchase for full consideration and no charge shall be exacted in money or money's worth; and exwhich exceeds the actual cost ex- cept property to or for the use of pended in behalf of such pupils; that literary, educational, scientific, rethe purpose of the foundation was ligious, benevolent and charitable not for gain or profit.

societies or institutions: Provided, Among the assets of the estate Such use entitle the property so

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