And the court held that Diggs had a right to be heard, and overruled the motion to dismiss the appeal. Certainly the proceeding to remove a guardian is equally a special proceeding with that of making the appointment. This proceeding was instituted by a near relative of the infant. It challenged the jprisdiction of the court in making the appointment, and it was proper that this motion should be heard and determined by that court, and it seems clear that the party defeated was entitled to appeal to the common pleas court.

The question then remains whether the court erred in holding that said infant was not a resident of Lorain county at the time the appointment was made, as the word "resident" is used in Section 6254, Revised Statutes.

After a careful examination of the question the conclusion is reached that there was no error in the judgment of the court of common pleas. The carefully prepared opinion of Judge Washburn in this case, published in 4 N. P.-N. S., 233, expresses our views of the law in the case, and is so exhaustive as to render it unnecessary to discuss to any considerable extent the questions there discussed.

Ths conclusion, on the part of two members of the court, is at variance with their views when the consideration of this case was first taken up. We have the feeling expressed by the judge of the common pleas, that it is unfortunate that this guardian should have to be removed, but the law seems to require it. And since as both this court and the court of common pleas hold that the residence of this child is in Huron county, the probate court of that county can, and doubtless will, upon proper application being made, appoint a suitable guardian for the child, whether it be the one appointed here or some other person; but from the evidence in the case, it seems altogether probable that the Probate Court of Huron County will appoint, on proper application, the same guardian that was appointed in this county.

The order of the common pleas is affirmed.

G. A. Resek, Clayton Chapman and P. H. Moroney, for plaintiff.

E. G. & H. C. Johnson and Lee Stroup, for defendant.

Davis et al v. County Commissioners. [Vol. VIII, N. S.

VALUATION OF LOTS IN A NEW SUBDIVISION.

[Circuit Court of Hamilton County.]

FRANCIS C. DAVIS ET AL V. THE COMMISSIONERS OF HAMILTON COUNTY, OHIO.

Decided, June 11, 1904.

Taxation-Application for Refunder-Authority of Assessor-In Fixing Tax Value of Lots in a New Subdivision-Errors, Fundamental and Clerical-Remedy of Property Owner-Sections 1038 and 2797.

1. The amendment to Section 2797, relating to plats of new towns or subdivisions presented to the county auditor for assessment, does not deprive the assessor of authority to assess and return the true valuation of each lot of a newly platted subdivision, but merely prescribes the rule which govern him in making such valuation. 2. Where it appears that the assessor acted within the scope of his authority in making his return as to the lots in such a subdivision, but did not equalize his valuations with those of adjacent lots and lands as made by the last decennial appraisement, the error is fundamental and not clerical, and the appeal of the property owner for redress should be to the annual board of city equalization.

GIFFEN, J.; JELKE, P. J., and SWING, J., concur.

The original application was made to the county commissioners for a refunder of taxes, under Section 1038, Revised Statutes.

In the year 1890, the plaintiffs in error were the owners of a tract of land comprising about three acres, which was valued under the decennial appraisement, at $4,480. In November, 1891, it was subdivided into thirty-nine lots, which the annual assessor returned at a valuation aggregating the sum of $24,200. It appearing afterwards that the assessor had, by mistake, returned a valuation price as great as intended, it was thereupon reduced to $12,100.

The claim made before the commissioners was that under Section 2797, Revised Statutes, the assessor was authorized only to apportion the decennial valuation to the several lots into which the land had been sub-divided. The claim was rejected by the commissioners, and upon appeal to the common pleas court,

a like judgment was rendered, together with separate findings of fact and conclusions of law. If the contention of counsel that the assessor has no authority to return the valuation upon the lots in excess of the decennial valuation upon the land be true, then the return would undoubtedly be such as the auditor may correct, or call the attention of the commissioners to. Section 2797 provides as follows:

"Whenever any person, or persons, shall lay out any town or any addition to any town, he or they shall, before the plat thereof is recorded, present the same to the county auditor, who shall cause the assessor of the proper locality to assess and return the true valuation of each lot or parcel of land described in such plat, in the same manner as new structures are valued; and thereupon such loss or parcels shall be entered on the tax list in lieu of the land included therein; but in making such valuation, regard shall be had to the next preceding decennial valuation of real estate, so that the said lots shall, as near as practicable, be equalized with adjacent lands and lots according to such decennial valuation."

This provision was first enacted April 6, 1866, "to provide for the valuation of lands in new town plats or additions thereto," and was construed in the case of Mitchell & Watson v. The Treasurer of Franklin County, 25 O. S., page 143. The second proposition of the syllabus is as follows:

"This act should be considered and construed in connection with other statutes, in pari materia; and when so considered and construed, its operation does not conflict with the provisions of the second section of the twelfth article of the Constitution."

And at page 158, the court say:

"If inequality, however, does, in fact, exist-if the plaintiff's property is placed on the duplicate for taxation at a higher valuation than other city property of the same cash value, or higher than its true value in money, ample provision is made by statute for their relief. It is their right and privilege to complain to the annual city board of equalization for redress, and it is the duty of the board to grant them relief. Until, therefore, they exhaust the remedy thus provided by statute, a court of equity should not interfere, in their behalf, by enjoining the collection of the tax."

Davis et al v. County Commissioners. [Vol. VIII, N. S.

This case clearly recognizes the authority of the annual assessor to return the valuation of a new subdivision in an amount greater than the decennial value of the land. But counsel urged, that in order to overcome the effect of this decision, the act was so amended, by the revision of the statutes, as to provide that in making such valuation, regard shall be had to the next preceding decennial valuation of real estate, so that the city lots shall, as nearly as practicable, be equalized with adjacent lands and lots according to such decennial valuation. Such revision, however, does not change the power or authority of the assessor to assess and return the true valuation of each lot, but merely prescribes the rule which shall govern the assessor in the making of such valuation. If it were intended that the assessor should only apportion the valuation of the land to the several lots into which the tract has been subdivided, there would be no occasion to provide for the assessing and returning of a true valuation, prescribing any rule whereby it should be done. The provision that the assessor shall assess and return the true val uation of each lot, shows that he is to exercise his judgment in arriving at such valuation, and to aid him in arriving at a correct conclusion, as well as equalize said lots with adjacent lands and lots, he is directed to have regard to the next preceding decennial valuation of real estate. The findings of fact show that the valuation of these lots were not equalized with adjacent lands and lots, but the assessor was acting within the scope of his authority, and the error was fundamental and not clerical. The plaintiffs in error were not without remedy, but could have appealed to the annual city board of equalization for redress. Judgment affirmed.

1906.]

Hamilton County.

UNREASONABLE LICENSE FEES.

[Circuit Court of Hamilton County.]

JOHN C. UHRLAUB V. THE CITY OF CINCINNATI ET AL.*

Decided, June 12, 1903.

Restraint of Trade-By Imposition of Unreasonable License FeeOrdinance Requiring Fee from Transient Dealers-Injunction. An ordinance which imposes a license fee of $300 on temporary stores and transient dealers is invalid, because prohibitive as to some classes, unreasonable as to others, and in restraint of trade.

It is agreed by counsel for the city and counsel for the plaintiff that the following additional facts are admitted to be true, and are to be taken as a part of the record in this case, to-wit:

1st. That the plaintiff in this case was a temporary and transient dealer within the meaning of the statute and ordinance in question in this case, and further, that the plaintiff brought his stock of goods from New York to the city of Cincinnati for the express purpose of opening a temporary store for the sale of the same in the city of Cincinnati, and that he did open said store for the aforesaid purpose.

2d. It is further admitted that the auctioneer engaged by the plaintiff to sell at auction the goods of the plaintiff in the store opened by the plaintiff, had paid the license fee, and had obtained a license from the city of Cincinnati to act as auctioneer, and that the city of Cincinnati required the plaintiff to take out a further license for the privilege of opening a "temporary store."

3d. That the goods which are described in the petition of the plaintiff, and which were offered for sale by the plaintiff, as described in the petition, were not in the original packages in which they had been brought from New York to the city of Cincinnati, but that said original packages were broken, and the articles contained in said original packages were taken therefrom, and offered for sale separately.

*Affirmed by the Supreme Court without report, May 31, 1905.