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 v. 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 the amount of the bond or directing him to take it, is not binding upon the sureties. State v. Clendennen (1851) 6 La. Ann. 744.

And a bail bond taken by the sheriff without authority, because the magistrate failed to indorse on the warrant of commitment the amount of bail required, cannot, when forfeited, form the basis of a valid judgment against the accused and his sureties, the bond being void. Evans v. State (1879) 63 Ala. 195.

And a bail bond taken by a sheriff without authority in a felony case, because the amount of the bail was not indorsed on the capias by the clerk of the court, but by the prosecuting attorney, is void and cannot bind the sureties. State v. Schmidt (1918) Mo. -, 200 S. W. 1071.

A bail bond taken without authority by the sheriff, because taken during the term without an order of the court fixing the bond, is void and the sureties are not liable. Turpin v. State (1919) 86 Tex. Crim. Rep. 96, 215 S. W. 455.

And a bail bond taken by a sheriff without authority, because the amount of the bond was fixed by the clerk of the court, where the judge was not shown to be absent from the county, was held nugatory and of no binding force on the sureties, who were only bound by the strict legal effect of the instrument. State v. Woodward (1901) 159 Mo. 680, 60 S. W. 1042.

But an instrument taken by the sheriff without authority, for the appearance of a person to answer a criminal charge, while not technically a recognizance, is good as a bond or obligation, and the sureties thereon are liable. Park v. State (1848) 4 Ga. 329. In this case the court said that while it is conceded that a sheriff has no right to exact bail, yet if the person arrested voluntarily, and without coercion, submits to give the obligation, it will bind him and his sureties, and that the instrument was clearly a good statutory bond or obligation under the statute, which was conclusive upon this point, to the ef

fect that when any person shall enter into any recognizance or obligation for the appearance of another to answer for any offense, or who shall be bound in any recognizance, bond, or obligation to answer a criminal charge, and shall fail to produce the principal, it shall be the duty of the solicitor general to forfeit the recognizance, bond, or obligation.

A bail bond taken by a constable without authority in a felony case, because without a judicial order fixing the amount or directing the bail to be taken, was held void, and a demurrer to the complaint in an action to enforce it against the sureties was upheld, in State v. Winninger (1881) 81 Ind. 51.

And in Ludlum v. Wood (1806) 2 N. J. L. 55, where a constable who had admitted a prisoner to bail without authority had a judgment recovered against him for not producing the prisoner, and thereupon brought an action against the sureties upon the bail bond, it was held that the act of the constable in taking bail without authority was an illegal act, and a judgment against the surety was reversed.

And the sureties were held not liable upon a bail bond taken by the jailer in a criminal case, upon the ground that the bond was taken without authority, in Com. v. Lee (1830) 3 J. J. Marsh. (Ky.) 698.

The court, in the rest of the cases in this subdivision, assumed that the sureties would not be liable if the bail bond was decided to have been taken without authority. there Thus, no. recovery against the sureties upon a bail bond taken without authority

was

v. Caldwell (1894) 124 Mo. 509, 28 S. W. 4;

by a clerk of the district court, in Morrow v. State (1870) 5 Kan. 563;

- by a clerk of the court during vacation, in Bunnell v. Com. (1921) 192 Ky. 592, 234 S. W. 187;

-by the clerk of a district court, because taken in vacation, in State v. Carothers (1860) 11 Iowa, 273;

- by a county clerk, upon the filing of a complaint before an information was presented to the county court, in Leal v. State (1907) 51 Tex. Crim. Rep. 425, 102 S. W. 414; Ochoa v. State (1907) Tex. Crim. Rep. —, 102 S. W. 415;

1

by a sheriff, because he had no power to take bail for the appearance of a person charged with a public offense, in Keller v. Com. (1853) 2 Monaghan (Pa.) 757;

by a sheriff, in a murder case, in Morrow v. State (1919) 86 Tex. Crim. Rep. 354, 216 S. W. 1100;

- by a sheriff, because taken from a prisoner who was committed because the examining magistrate did not know whether the offense was bailable or not, in State v. Horn (1838) Meigs (Tenn.) 473;

- by a sheriff, because of the absence of an order of the court to take the bond, in State v. Smith (1857) 12 La. Ann. 349;

-by a sheriff, because taken without an order of the court admitting the accused to bail or fixing the amount of the bond, in State v. Balize (1886) 38 La. Ann. 542;

- by a sheriff, because taken after the surrender of the accused by the old bail, without any process or order of the committing magistrate, in State v. Wren (1858) 21 Tex. 379;

- by a sheriff, because not taken in accordance with the statute or the mandate of the court contained in a capias, in Busby v. State (1854) 13 Tex. 136;

- by a sheriff, for the appearance of a person arrested for a criminal offense, who had been committed to jail by the examining magistrate, in Cooper v. State (1861) 23 Ark. 278;

- by a sheriff, after a change of venue had been ordered, in Harbolt v. State (1898) 39 Tex. Crim. Rep. 129, 44 S. W. 1110;

- by a sheriff, on the order of the governor of the state pending the granting of a pardon, in Louisiana v. Fay (1852) 8 La. Ann. 490;

- by a sheriff, from one who voluntarily surrendered himself without being charged with any offense, because it was the duty of the sheriff to take the accused before a magistrate, in State v. Miller (1869) 31 Tex. 564; - by a sheriff, in a felony case, after he had arrested the defendant and before taking him before a magistrate, in Short v. State (1884) 16 Tex. App. 44;

-

Headnote by HOPKINS, J.

Board of Education v. Illinois, 203 U. S. 553, 51 L. ed. 314, 27 Sup. Ct. Rep. 171, 8 Ann. Cas. 157; Re Fiske, 178 Cal. 116, 172 Pac. 390; Re Frain, 141 La. 932, 75 So. 847; Re Peterson, — Iowa, 166 N. W. 168. Messrs. William R. Smith, Owen J. Wood, and A. A. Scott for defendant. Messrs. Charles B. Griffith, Attorney General, and Donald W. Stewart, Assistant Attorney General, for intervener:

The Kansas statute exempting property to or for the use of benevolent or charitable societies, or institutions, from the operation of the inheritance tax law, does not apply to nonresident benevolent or charitable institutions. State ex rel. Taggart v. Holcomb, 85 Kan. 178, 50 L.R.A. (N.S.) 243, 116 Pac. 251, Ann. Cas. 1912D, 800, 226 U. S. 599, 57 L. ed. 375, 33 Sup. Ct. Rep. 112; Blakemore, Inheritance Taxes, § 257; Gleason & O. Inheritance Taxn. 2d ed. 233; Ross, Inheritance Taxn. p. 193, § 146; 37 Cyc. 1573; 26 R. C. L. § 197, pp. 226, 227; Re Prime, 136 N. Y. 347, 18 L.R.A. 713, 32 N. E. 1091; Re Speed, 216 Ill. 23, 108 Am. St. Rep. 34 A.L.R.-40.

189, 74 N. E. 809; 203 U. S. 553, 51 L. ed. 314, 27 Sup. Ct. Rep. 171, 8 Ann. Cas. 137; Re Quirk, 257 Mo. 422, 51 L.R.A. (N.S.) 817, 165 S. W. 1062; Humphreys v. State, 70 Ohio St. 67, 65 L.R.A. 776, 101 Am. St. Rep. 888, 70 N. E. 957, 1 Ann. Cas. 233; Carter v. Whitcomb, 74 N. H. 482, 17 L.R.A. (N.S.) 733, 69 Atl. 779; Minot v. Winthrop, 162 Mass. 113, 26 L.R.A. 259, 38 N. E. 512; Alfred University v. Hancock, 69 N. J. Eq. 470, 46 Atl. 178; Re Hickok, 78 Vt. 259, 62 Atl. 724, 6 Ann. Cas. 578.

Hopkins, J., delivered the opinion of the court:

The action is one of mandamus to compel the defendant to transfer on its books certain stock now standing in the name of George H. Marsh. The plaintiffs are the trustees of the Marsh Foundation under the will of George H. Marsh, deceased, who died August 13, 1920, being at the time of his death a resident and citizen of the city of Van Wert in Van Wert county, Ohio. The state is an intervener. The question involved is whether a statute, exempting property to or for the use of benevolent or charitable societies or institutions from the operation of the inheritance tax law,

applies to those that are nonresiIdent of the state.

By the terms of his will. Mr. Marsh, after making certain individual bequests, bequeathed the remainder of his estate to trustees to be used to establish and maintain a home and school in Van Wert county, Ohio, for (1) the benefit of orphans and other children, residents of Van Wert county; (2) the benefit of orphans and other children, residents of northwestern Ohio, who, by reason of misfortune or for any other cause, are denied the opportunity to secure home training, education, and instruction; and (3) the benefit, if the income and capacity of the school warrant, of such other children as may be received into the school alone, who may not be dependent upon the foundation for a home, the Van Wert county pupils always to be given preference in the matter of admission. It was further provided that, if the capacity of the school warrant the admission of pupils of Van Wert other than orphan children, the board may admit such, and may also admit orphans or other children from other counties of northwestern Ohio; that if a child from any such county other than Van Wert county, by reason of having property or friends, is able to make or secure payment to the foundation of a small amount to cover the maintenance of such child, or any part of such expense, then a charge may be exacted; otherwise the board may admit such child free of charge; that, if the capacity is greater than the needs of the various classes of children mentioned, then the board, under such terms as it thinks advisable, may admit pupils, without restriction as to residence, for manual or other training, who are receiving their commonschool education in other schools, and no charge shall be exacted which exceeds the actual cost expended in behalf of such pupils; that the purpose of the foundation was not for gain or profit.

Among the assets of the estate

turned over to the trustees of the Marsh Foundation were 500 shares of the common stock of the defendant company, of the par value of $100 per share. The plaintiffs have heretofore made request and demand upon the defendant to transfer such shares of stock to and in the name of the trustees of the Marsh Foundation. This the defendant has refused to do, unless and until the plaintiff shall pay the inheritance tax assessed upon the transfer of such stock by the inheritance tax commission.

It is the contention of the plaintiffs that the Marsh Foundation is an educational, benevolent, and charitable institution, and that, therefore, all property passing to it by will is exempt from the payment of inheritance taxes. On the other hand, the state, while not denying the worthiness of the charity of the Marsh Foundation, contends that it was not the intention of the legis lature to exempt foreign charitable institutions from taxation.

Section 1 of article 11 of the Constitution, in part, reads: "But all property used exclusively for state, county, municipal, literary, educational . purposes

shall be exempted from taxation."

The statute (Rev. Stat. § 791501) in relation to assessment and taxation of legacies and successions, provides: "All property, corporeal or incorporeal, and any interest therein, within the jurisdiction of the state, whether belonging to the inhabitants of the state or not, which shall pass by will or by the laws regulating intestate succession, or by deed, grant or gift made in contemplation of death, or made or intended to take effect in possession or enjoyment after the death of the grantor, to any person, absolutely or in trust, except in case of a bona fide purchase for full consideration in money or money's worth; and except property to or for the use of literary, educational, scientific, religious, benevolent and charitable societies or institutions: Provided, Such use entitle the property so