as other lands are redeemed after having been sold for taxes. The person so neglecting shall be liable to the persons next entitled to the estate for all damages such persons have sustained by such neglect. (R. S. Sec. 2852.)

The forfeiture of the life estate herein provided for is valid and constitutional : McMillan v. Robbins, 5 O. 28.

The tax laws which exact forfeitures are regarded as penal laws in Ohio, and must be construed strictly: Mathers v. Bull, 6 O. N. P. 45, 9 O. D. (N. P.) 408.

No forfeiture of the estate of a life tenant accrues, under this section, from the failure of the tenant to pay the taxes on the land, in consequence of which the land is sold at delinquent tax sale, where, by reason of errors or irregularities in levying the tax or in making the sale, no valid deed can be made by the auditor to the purchaser at the tax sale: Estabrook v. Royon, 52 O. S. 318.

If forfeiture of a lease has been incurred by reason of a breach of a covenant to pay taxes, and such breach is not willful and is not the result of gross negligence and no demand has been made by the lessor prior to such forfeiture, equity will relieve against such forfeiture: Eichenlaub v. Neil, 10 O. C. C. 427, 6 O. C. D. 567 [affirmed, without report, Neil v. Eichenlaub, 56 O. S. 782].

In Clason v. Ward, 1 O. N. P. 218, 1 O. D. (N. P.) 192, it was said that a dower right was not forfeited under this section, until the land was sold and one year thereafter had expired, but that it was immaterial whether the sale was valid or not.

The purchaser of an estate in remainder at a sale on foreclosure of a mortgage upon the estate, made subject to the life estate on which the remainder is limited, cannot claim a forfeiture of the life estate from the sale of lands at delinquent tax sale, and a failure to redeem within the time prescribed by this section, where the omission occurred prior to the foreclosure, and there is nothing to show but that the forfeiture was waived by the mortgagor: Chaffee v. Foster, 52 O. S. 358.

In Anderson v. Messenger, 158 Fed. 250, 85 C. C. A. 468, 16 O. F. D. 134, it was said that the interest of a life tenant cannot be forfeited for failure to pay assessments for local improvements.

Lien, etc., for taxes paid by lien holder.

SEC. 5689. A person having a lien upon real estate may pay the taxes which are a lien thereon, and the amount so paid, from the time of payment, shall be a lien upon such real estate in preference to all other liens. The money so paid may be recovered by action for money paid for his use against the person or persons liable for the payment of the taxes. (R. S. Sec. 2853.)

If the taxes appear to have been assessed legally upon the duplicate, and the mortgagee, without knowledge that such taxes are in fact illegal, has paid the same to protect his lien, the mortgagee may enforce his lien against the owner of the property for the full amount paid by him, and the owner of such property can recover the illegal or excessive amount thereof from the county: Bates v. Peoples Association, 42 O. S. 655.

He

If the property is sold under this section, a lienholder cannot stand by, see the property sold so as to impose a penalty, and then acquire title by an assignment of the certificate. should pay the taxes and then recover the amount of such payment and the amount for which the certificate calls for, with simple interest, and without penalty thereon: Insurance Co. v. Morrow, 16 O. C. C. 351, 8 O. C. D. 419 [affirmed, without report, Morrow v. Insurance Co., 61 O. S. 661.]

Rights of joint owner paying his portion of tax.

SEC. 5690. When a tract of land is owned by two or more persons, as joint tenants, co-partners, or tenants in common, and one or more of them has paid the tax, or tax and penalty, charged or chargeable on his or their proportion of such tract, and one or more of those remaining has failed to pay his or their proportion of the tax, or tax and penalty, charged or chargeable on said land, and partition of the land is made between them, the tax and penalty, so paid, shall be deemed to have been paid on the proportion of such tract, set off to the person or persons, who paid his or their proportion of the tax, or tax and penalty. (R. S. Sec. 2854.)

Where a person seized of lands as tenant in dower, neglects to pay the taxes thereon so long that they are sold for the payment of taxes, if one of several tenants in common of the remainder in fee of such lands purchase the lands at the tax sale, the purchase will be held to inure to the benefit of all the cotenants in remainder. The tenant in common so purchasing will be entitled to contribution from his cotenants toward the cost and expense incurred in the purchase of the tax title: Clark v. Lindsey, 47 O. S. 437.

Persons not paying, liable as if partition had not been made.

SEC. 5691. Such person or persons so paying the tax. or tax and penalty, shall hold the proportion of such tract, so set off to him or them, free from the residue of the tax, or tax and penalty charged on the tract before partition. The proportion of the tract set off to the person or persons who has not paid his or their proportion of the tax, or tax and penalty, shall be charged with the portion of the tax, or tax and penalty, remaining unpaid. in like manner as if partition had been made before the tax. or tax and penalty, had been assessed, and the proportion of the tract, originally listed for taxation, in the name or names of the delinquent person or persons. (R. S. Sec. 2854.)

How tax on lands sold at judicial sale paid.

SEC. 5692. When land so held by tenants in common are sold upon proceedings in partition, or taken by the election of any of the parties to such proceedings, or real estate is sold at judicial sale, or by administrators, executors, guardians, or trustees, the court shall order the taxes and penalties, and the interest thereon against such lands, to be discharged out of the proceeds of such sale or election. (R. S. Sec. 2854.)

1

Until the levy of taxes is made upon the duplicate, or until it can be made, no order can be made rightfully to discharge such taxes out of the proceeds of a judicial sale: Hoglen v. Cohan, 30 O. S. 436.

If real estate is sold at judicial sale, or by administrators, executors, guardians or trustees, on or after the first day of October, and taxes stand legally charged upon the tax duplicate against such real estate, such taxes, together with any penalty and interest thereon at the time of such sale may, under this section, be ordered to be discharged out of the proceeds of such sale: Creps v. Baird, 3 O. S. 277; Ketcham v. Fitch, 13 O. S. 201; Hoglen v. Cohan, 30 O. S. 436.

Under this section it is the duty of the court in judicial sales to order the taxes to be paid out of the proceeds thereof: Scheid v. Scheid, 5 O. D. (N. P.) 559; see, to the same effect, Sandheger v. Brewing Co., 6 O. N. P. 410, 8 O. D. (N. P.) 592.

Installments which are properly entered upon the annual county duplicate should be collected the same as other taxes, and in case of a judicial sale of real estate, or a sale by administrators, executors, guardians or trustees, made after the last day of September in any year, such installments as stand unsatisfied upon such duplicate should be paid out of the proceeds of such sale, as provided as to other taxes in this section: Makley v. Whitmore, 61 O. S. 587.

This section does not apply to assessments for local improvements made by municipal corporations: Cincinnati v. Lingo, 13 O. C. C. 334, 7 O. C. D. 356 [affirmed, without report, Cincinnati v. Sterritt, 57 O. S. 654.]

When part owner shall have lien for tax.

SEC. 5693. A part owner, paying the tax on the whole tract or tracts of which he is a part owner, shall have a lien on the shares or parts of the other part owner for the tax paid in respect to their shares or parts, which, with interest thereon, he shall be entitled to receive on sale or partition of such lands, and the collection of which, with interest may enforce as any other lien or charge. (R. S. Sec. 2854.)

Auditor shall ascertain amount.

SEC. 5699. The county auditor shall carefully ascertain the net amount of taxes collected for each particular purpose. (103 v. 522. R. S. Sec. 2861.)

When county officer allowed counsel.

SEC. 5700. When an action has been commenced against the county treasurer, county auditor, or other county officer, for performing or attempting to perform, a duty authorized or directed by statute for the collection of the public revenue, such treasurer, auditor, or other officer, shall be allowed and paid out of the county treasury reasonable fees of counsel and other expenses for defending the action. The amount of damages and costs adjudged against him, with the fees, expenses, damages, and costs shall be apportioned ratably by the county auditor among all the parties entitled to share the revenue so collected. and be deducted by the auditor from the shares or portions of revenue at any time payable to each. including as one of the parties the state itself, as well as the counties, townships. cities, villages, school districts, and organizations entitled thereto. (R. S. Sec. 2862.)

This section applies only to suits commenced against the county treasurer or other county officers for performing or attempting to perform a duty in collecting the public revenue: State, ex rel., v. Commissioners, 8 O. N. P. (N. S.) 281.

Expenditures under this section in actions against county officers are to be pro rata among the parties entitled to share in the revenue so collected: and the state may accordingly be charged with its share of the expense. In this respect this section differs from G. C. $$ 5697 and 5698, where no provision is made for charging the state with any part of such State, ex rel., v. Cappeller, 39 O. S. 207.

expense:

The commissioners under their power to employ an attorney, may employ the prosecuting attorney under this section: State v. Stafford, 11 O. D. (N. P.) 720.

County Solicitor to attend to such suits.

SEC. 5701. In each county in which there is a county solicitor, or a board of control having a solicitor, the county solicitor and the solicitor of such board shall take charge of and attend to all actions against any county officer in such county for performing, or attempting to perform. any of the duties authorized by law. Such officers shall not employ any other counsel to defend such action or suit. (R. S. Sec. 2862.)

Abstract of duplicate, etc., transmitted to auditor of state.

SEC. 5702. The county auditor, on or before the first day of October, annually, shall make and transmit by mail, to the auditor of state, a complete abstract of the duplicate of his county. Such abstract shall state the aggregate value of the taxable property, and the total amount of taxes for all purposes assessed thereon for the year. (R. S. Sec. 2863.)

Abstract of personal property.

SEC. 5703. At the time provided in the next preceding section, the county auditor shall also make and transmit to the auditor of state, an abstract of the number and value of each of the enumerated articles, the value of merchants' and manufacturers' stocks, and the value of all other personal property, moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise, and the value of all other articles of personal property, as returned by the township assessors, or as fixed by the county board of equalization. Such abstracts shall be made out in the form, and the statement shall contain such details as the auditor of state prescribes. (R. S. Sec. 2863.)

Cited State, ex rel., v. Madigan, 8 O. C. C. (N. S.) 553, 18 O. C. D. 673.

SEC. 5894. A person, firm, company, corporation, or co-partnership, engaged in the wholesale business of trafficking in cigarettes, cigarette wrappers or a substitute for either. shall annually be assessed and pay into the county treasury the sum of thirty dollars, or, if so engaged in such traffic in the retail business, the sum of fifteen dollars for each place where such business is carried on by or for such person, firm, company, corporation or co-partnership. (91 v. 311, §§ 1, 2.)

For the penalty for failure to display the receipt showing the payment of such tax, see G. C. $12680.

A former statute imposing a tax upon the business of trafficking in cigarettes or cigarette wrappers was held to be valid and constitutional, and not in conflict with Art. XII, § 2, of the Ohio constitution, or with Art. XII, § 5, of the Ohio constitution, or with Art. XIV, § 8, of the constitution of the United States : Metz v. Hagerty, 51 O. S. 521.

A corporation located outside the state through its salesmen sells cigarettes to retail dealers in Ohio and ships the same direct. The retail dealers receive no invoices from the corporation, which sends the invoices to an Ohio representative who presents the invoices to the retailers, makes collection and settles with the corporation, deriving a profit from the transactions. Such transactions are in legal effect sales by the corporation direct to the retail dealers and the Ohio representative who makes the collections is not liable for the wholesale cigarette dealer's license under section 5894, G. C. A. G. R. 1915, p. 1270.

Time for payment; part of year.

SEC. 5895. The assessments provided in the next preceding section shall be paid by such person, firm, company, corporation or co-partnership on or before the twentieth day of June of each year. When such business is commenced after the fourth Monday of May, such assessments shall be proportionate in amount to the remainder of the assessment year, except that it shall not be less than one-fifth of the whole amount to be assessed in any one year. (91 v. 311, § 3.)

Refunder if business discontinues.

SEC. 5896. When the person, firm, company, corporation or co-partnership describe in section fifty-eight hundred and ninety-four, which has been so assessed, and which has paid or is charged upon the tax duplicate with the full amount of such assessment, discontinues such business, the county auditor shall issue to such person. firm, company, corporation or co-partnership a refunding order for a proportionate amount of the assessment. Such order shall not be less than one-fifth of the whole amount to be assessed in one (91 v. 311, § 3.)

year.

Refunding orders drawn under section 5896, G. C., should be drawn against the general county fund and such fund should be reimbursed by charging the amount of the refunder against the undivided proceeds of collections of cigarette assessments in the treasury to the credit of the state and county and the city, village or township to which the original assessment, on account of which the refunder was made, was distributed and in the same proportion as such original distribution was made under the statute, and if there are not sufficient of such proceeds of assessments, to the credit of any such beneficiaries, the amount chargeable against it should be deducted from the undivided tax distribution due it at the next settlement. A. G. R. 1915, p. 1270.

INTOXICATING LIQUORS.

Meaning of phrase "trafficking in intoxicating liquors."

SEC. 6065. The phrase "trafficking in intoxicating liquor," as used in this chapter and in the penal statutes of this state, means the buying or procuring and selling of intoxicating liquor otherwise than upon a prescription issued in good faith by a reputable physician in active practice, or for exclusively known mechanical, pharmaceutical or sacramental purposes. Such phrase does not include the manufacture of intoxicating liquors from the raw material, and the sale thereof by the manufacturer thereof in quantities of one gallon or more at one time at the manufactory or the sale thereof in said quantities from the wagon or other vehicle of the manufacturer to the holder of a liquor license or in said quantities to individual consumers where said liquors are delivered to the homes of said individual consumers in territory wherein the sale of intoxicating liquors is not prohibited by law. (103 v. 241. R. S. Sec. 5364-16.)

Annual assessment on liquor business.

SEC. 6071. "Upon the business of trafficking in spirituous, vinous; malt or other intoxicating liquors, there shall be assessed yearly and paid into the county treasury, as provided by sections 6072, and following, of the General Code, by each person, corporation, or co-partnership engaged therein the sum of one thousand dollars." (R. S. Sec. 4364-9.)

The word "assessed" in similar statutes means "charged": Markle v. Newton, 64 O. S. 493, The provision for refunding a part of a tax if the liquor dealer goes out of business is not rendered impossible of execution merely because it does not provide out of what fund such payment shall be made: Van Wert v. Brown, 47 O. S. 477.

This section is an exercise of the police power; and the delivery of an unbroken package by the agent of the manufacturer does not avoid the provisions of this and the following sections, although such delivery is the last step in interstate commerce: Stevens v. State, 61 O. S. 597.

This section includes the business of trafficking in malt liquor whether intoxicating or not: State v. Walder, 83 O. S. 68.

If one in dry territory orders liquor from outside of such territory to be sent by express C. O. D., the sale is complete upon delivery to the express company, and such sale is not made in dry territory: Mullen v. State, 10 O. C. C. (N. S.) 417, 20 O. C. D. 251 [affirmed, State v. Mullen, 78 O.. S. 358.]

It a sale is made by correspondence and under the terms of the contract the person to whom the intoxicating liquor is sent has the option to accept it or not, and to pay price agreed upon only if he approves the goods and concludes to purchase them, but otherwise he is to return them at the expense of the sender, such approval and conclusion to purchase are necessary to complete the sale, and such sale is accordingly made in dry territory if the purchaser resides therein : Hayner v. State, 83 O. S. 178.

The fact that money paid as a tax for the privilege of selling intoxicating liquor is paid under protest and to avoid distraint does not relieve the county treasurer from the duty of paying the proper proportion thereof over to the city treasurer: Ratterman v. State, 44 0. S. 641.

The present statutes imposing a tax upon the sale of intoxicating liquor, and statutes similar thereto, have been held to be valid and constitutional. Such tax is not a license, but is a means of providing against the evils arising from the liquor traffic: Adler v. Whitbeck, 44 O. S. 539; Anderson v. Brewster, 44 O. S. 576.

The sale of intoxicating liquor is subject to taxation, even though such business is conducted in violation of a valid ordinance: Conwell v. Sears, 65 O. S. 49.

Since the statute imposes a tax upon the business of trafficking in malt liquor, such tax is to be imposed whether the liquor thus sold is intoxicating or not: La Follette v. Murray, 81 O. S. 474.

See to the same effect under an earlier analogous statute State v. Kauffman, 68 O. S. 635. The sale of malt liquor, whether intoxicating or not, is forbidden by the county local option law (G. C. § 6108, et seq.): State v. Walder, 83 O. S. 68.

The sale of twenty-five bottles of beer not for medical purposes was held to be a sale at retail within the meaning of the Dow law: Kaufmann v. Hillsboro, 45 O. S. 700.

The provision excepting a manufacturer from taxation for sales of liquor made from the manufactory in quantities of one gallon or more at one time, does not except a manufacturer from the operation of the county local option law (G. C. § 6108, et seq.), and he is criminally liable for selling in dry territory, even if the sale is made from the manufactory in quantities exceeding a gallon at a time: Scheu v. State, 83 O. S. 146.

A tax for the sale of intoxicating liquor may be imposed upon a wholesale dealer as well as upon the retail dealer, in the absence of specific statutory provision: Senior v. Ratterman, 44 O. S. 661.