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Bridge Co. v. Yost.

"It is the duty of the resident property owner to return his taxable property for taxation. In the performance of this duty he must use diligence and care in acquiring knowledge from sources where information is obtainable. It he uses such care and acts honestly, making his return in accordance with his best knowledge and belief. after using all reasonable means to obtain an intelligent beliet, his return will not be false within the meaning of Sec. 2781. But this belief must result from a careful effort to perform the duty. Blind reliance upon an indolent belief that one's property is not taxable, without investigation, inquiry or disclosure to the taxing officer, would show culpable negligence, as fatal to the claim of good faith and innocent purpose, as would direct intent to deceive."

And we are not prepared to say that the action taken by certain officers of this bridge company, in appearing before the board of equalization lon certain occasions, to make inquiries, and in having interviews there, was sufficient to require the jury to say that their returns were not false: we think that notwithstanding these interviews and notwithstanding what has been testified to as having occurred there, there was evidence tending to show that the bridge company had not proceeded with such care and diligence to ascertain what was required of them in the way of returning this property for taxation, as must, as a matter of law, have excused it from the charge of making a false return. There was enough evidence bearing upon the question to require that it should entered be submitted to the jury and the verdict is not, in our judgment, mani-testy against the weight of the evidence.

It is also contended that since the court of common pleas erred in charging the jury that the plaintiff was entitled to recover five per cent. as fees of the treasurer on such amount as they might find to be due in the way of taxes, and since this per cent. to the treasurer may have entered into this verdict, therefore, the court should have granted the motion for a new trial.

The case of Hunter v. Borck, 51 Ohio St. 320 [37 N. E. Rep. 714], has been referred to as holding distinctly that the penalty of five per centum to be allowed to the treasurer should be collected upon the amounts entered upon the tax duplicates under Sec. 2781, Rev. Stat. It is not clear to us that this case so holds. It is held that the treasurer is not entitled to its five per centum upon the penalty added to the tax on account of the failure to make the semi-annual payments of taxes as they fell due at these semi-annual periods. The provision allowing five per cent. to the treasurer is contained in Sec. 1094, Rev. Stat., which reads in part:

"When one-half of the taxes as aforesaid, charged against any entry, on a tax duplicte in the hands of a county treasurer, is not paid on or before the twentieth day of December next, after the same has been so charged, or when the remainder of such taxes is not paid on or before the twentieth day of June next thereafter, the county treasurer shall proceed to collect the same by distress or otherwise, together with a penalty of five per centum on the amount of taxes so delinquent."

And this, we understand as applicable to the taxes which the plaintiff in error here should have paid for and on account of the year 1894, and which would have been overdue at the time suit was begun if he had returned his property for taxation at the proper time, and the same is true as to the taxes of 1895, and of the subsequent years for and on account of which these taxes were found to be due and delinquent; the

Lucas Circuit Court.

treasurer was in duty bound to proceed and collect the same, by distress or otherwise, together with a penalty of five per cent. upon the amount of taxes so delinquent. We think that the fifty per cent. added under Sec. 2781, Rev. Stat., is of the same quality, stands upon the same footing, as that added under Sec. 2784, Rev. Stat., which provides:

"The assessor shall, in every case in which any person, company or corporation retuses or neglects to make return, or, on being requested to do so, refuses or neglects to swear to the same, shall return the fact of such refusal or neglect by the words 'refused to list' or 'refused to swear,' as the case may be; and in every such case, and in every case in which any company, or corporation whose duty it is to make return of taxable property to the auditor, refuses or neglects to make or verify such return, the auditor shall add to the amount returned, or ascertained, fifty per centum of such amount, and the amount thus increased shall be the basis of taxation for that year."

While this method amounts to the same and the result is the same as adding the penalty of fifty per cent. to the taxes, it will be observed that the method is to add fifty per cent. to the valuation and then the tax is calculated upon this valuation, and the same method is pursued under Sec. 2781, Rev. Stat.

As I have said, the plaintiff in error is a manufacturing company engaged in the manufacture of bridges. There was some testimony upon the trial tending to show that in many instances and with respect to a large amount of its property going into bridge structures it is not brought to the manufactory of the company in the city of Toledo at all, but is shipped from the plants of certain steel companies in other states to a certain point, either in this county or elsewhere, where the bridge is located, and there built into the structure. And it was contended in the court below and is contended here on behalf of the plaintiff in error, that such property is not to be returned for taxation, and in accordance with that view, the court was asked by the plaintiff in error to charge the jury as follows:

9. The defendant cannot be taxed upon material purchased by it for use in its business which has not come to its factory to be changed or operated upon, but goes directly from the steel mills or other bridge companies to the place of use. It the testimony shows that the defendant used a portion of its material in this manner and the total sales of the company embraces such material, then such total sales would not form a satisfactory basis from which to estimate the amount to be returned by the defendant for taxation."

This charge was not given, and the refusal of the court to give it, is alleged as error.

A manufacturer, within the purview of the law, on the subject of taxation, is defined in Sec. 2742, Rev. Stat., as a "person who shall purchase, receive or hold personal property of any description for the purpose of adding to the value thereof by any process of manufacturing, refining, rectifying, or by the combination of different materials with the view of making a gain or profit by so doing."

And the statute provides that he shall include in his statement to the assessor "the average value estimated as provided herein of all articles purchased, received or otherwise held for the purpose of being used, in whole or in part, in any process or operation of manufacturing, combining, rectifying, or refining, and also of all articles which were at any time by him manufactured or changed in any way, either by com

Bridge Co. v. Yost.

bination or rectifying, or refining or adding thereto which, from time to time, he shall have had on hand during the year next previous to the first day of April annually, it so long he shall have been engaged in such manufacturing business."

If the plaintiff in error had caused the materials for the structures which it was erecting throughout the state to be partly put in form in another state and then, instead of having the same brought to the factory here in Toledo and operated upon, had caused them to be taken to the points where the bridge was being erected and had sent its operatives from the factory here in Toledo to such points and they had there worked upon the materials to bring them to completion so they could enter into the structure and had then and there built up the structure, under the law as laid down in this charge it would not have been required to return any of such property for taxation.

We are of the opinion that it would be required to return such property for taxation notwithstanding the operations upon it might be elsewhere than at the factory or under the roof of the factory in Lucas county, and that therefore the court of common pleas did not err in refusing to give this request to the jury.

What our view would be upon a case of property not brought into the state at all, or not operated upon in this state, or property merely conveyed through the state in going into the erection of a bridge or structure in another state, we need not say, although it was discussed in argument, since the request to charge does not involve that kind of a case but goes far beyond it.

Neither need we discuss or express an opinion upon the question as to what if any part of the property that is not directly operated upon, such as an abutment or piers and the wooden parts of the structure or other parts that were erected upon the same sub-structure; need go into the return, since no question of that kind seems to us to be directly involved here.

Counsel for plaintif in error contend that if there was no falsity in these returns, the auditor was not authorized to proceed at all under Sec. 2781, Rev. Stat, but that he was required to proceed or that he might proceed under Sec. 2742, Rev. Stat., and under no other section, and that if he proceeded under Sec. 2742. Rev. Stat., he could not go back of the current year-could not enter-upon his tax duplicates any alleged delinquent taxes or omitted taxes for the years prior to the current year. This view we believe is correct. But we also believe that if proceeding under Sec. 2742, Rev. Stat., he found omitted taxes of the current year, those might be entered upon the tax duplicate by a method substantially, it not precisely, like that pursued here, and that he might for the collection of such taxes, institute an action under Sec. 2859, Rev. Stat., and that even though there was no falsity in these returns and the jury might have so found, and though there may have been omitted taxes for many years which had not been entered upon the tax duplicate, the plaintiff would be entitled to have the suit go forward to recover all of the omitted taxes of the current year, but for no more, and in looking at the charge of the court to the jury, on page 39, we find that the fact that the jury were not authorized to go back of the current year unless they found that there was falsity in the returns, seems to have been over looked by the trial judge since he charged as follows:

"If we find, however, that although the returns of the defendant were insufficient, they were not false as I have defined the word, you

Lucas Circuit Court.

will multiply the amount of deficiency found by you by the rate for the year as shown by 'Exhibit A' and thus determine the tax for the year. Having determined the tax which the plaintiff is entitled to recover, if he recovers at all, you will add up the amounts, and on that amount.— on the sum so obtained-you will allow the plaintiff five per cent. to which he is entitled as a penalty, as compensation for the collection of delinquent personal taxes and to the sum of taxes which he is entitled to recover you will add this penalty of five per cent."

"I will say to you further, that on the amount of taxes and penalty which you may find the plaintif is entitled to recover in this action, if he recover at all, you will also compute interest at the rate of six per cent. from the fifteenth day of January of this year, the date of the beginning of this action, to the first day of this term of court, which was September 17, and add that to the amount, and in your verdict, if you find for the plaintiff, you will write the total sum that the plaintiff is 'entitled to recover for taxes, penalty and interest."

This clearly authorized the jury to take into consideration omitted taxes for the years prior to the current year; and this we think, was wrong. The statute in this respect has been changed since this tax was entered upon the duplicate and since this action was begun. Since that time Sec. 2781a, Rev. Stat. has been passed, which provides that even in the case of taxes omitted by mistake or innocently, the auditor is authorized to go back five years, but that statute was passed upon March 22, 1900, and, therefore, could have no application to the action of the auditor in entering these taxes upon the duplicate or in commencing this suit, both of which events occurred before that date.

We have no means of telling with certainty whether the jury found that these returns were "false" within the meaning of Sec. 2781, Rev. Stat. They may have found that they were not false. The computa tions I have suggested afford at least very strong evidence that they did so find, and yet they were authorized by this charge, notwithstanding their finding that there was no falsity in the returns, to proceed to compute and enter into their verdict the taxes omitted for years prior to the current year, and since we cannot be sure that such error in the charge did not result prejudicially to the plaintiff in error, and since we cannot determine with certainty that such result did not flow from this charge, we are obliged, under the rules, to reverse this judgment.

I have not discussed all of the points that were debated by counsel, but it will be sufficient to say that the error here pointed out is the only error we find in the record, and for that reason, and that alone, the judgment of the court of common pleas will be reversed.

LANDLORD AND TENANT-GAMBLING.

[Allen Circuit Court, April Term, 1901.]

Norris and Mooney, JJ.

*JOSEPH C. THOMPSON V. CHARLES L. ACKERMAN.

1. JUSTICES OF THE PEACE-NEW TRIALS-SEC. 6560, REV. STAT.

The power of adjudication of a justice of the peace is derived from the statute, and if not exercised within the time allowed by law, his jurisdiction ceases.

Dismissed by Supreme Court for failure to file papers in time, October 1, 1901. For decision of the court of common pleas, see 10 Dec., 361.7

Thompson v. Ackerman.

Hence by adjourning the hearing of a motion for a new trial beyond the time limited by Sec. 6560, Rev. Stat., by which his authority to grant new trials is conferred, his jurisdiction on the motion is lost unless it appears of record that the parties consented to such adjournment.

2. MERE APPEARANCE IS NOT CONSENT.

Justice courts are of inferior jurisdiction, and consent of parties conferring jurisdiction must appear of record. An appearance at time of hearing a motion or trial of a case beyond the statutory time for the same, is not sufficient to establish consent thereto or confer jurisdiction upon the justice.

3. ORDER BEYOND STATUTORY TIME-A NULLITY.

Section 6560, Rev. Stat., 93 O. L. 51, authorizing justices of the peace to grant new trials in certain cases upon motion at any time within four days after entering judgment, does not authorize the hearing of a motion for a new trial March 21, where the judgment was entered March 16, and motion filed March 17, consent of parties to such continuance of five days after entering judgment not appearing on the record, and an order made upon the date of hearing the motion fixing a time to prepare a bill of exceptions is a nullity.

4. BILL OF EXCEPTIONS-FILED TOO LATE.

Under Sec. 6565, Rev. Stat., 93 O. L., 104, providing that a justice of the peace shall fix a time to prepare a bill of exceptions not less than five nor more than ten days from date of judgment or overruling of action for new trial, a bill of exceptions prepared and filed thirteen days after judgment, as where judgment was entered March 16, and the bill of exceptions not filed until March 29, is not part of the record and will not be considered by a reviewing

court.

5. CASE CONSidered NotwITHSTANDING IRREGULARITY IN BILL, ETC.

Notwithstanding a justice was without jurisdiction to hear a motion for new trial, grant an order fixing a time to prepare and file a bill of exceptions, and the bill of exceptions was not legally filed, if these errors are not assigned for review, the court may consider the case upon its merits, such being the only errors assigned.

6. LANDLORD KNOWINGLY Permitting Use of Premises for GamBLING. An owner of premises having knowledge that the lessee is using the same for gambling purposes and who does nothing whatever to hinder or prevent the lessee from so keeping and using the same, "knowingly permits" such use within the meaning of Sec. 4275, Rev. Stat.

7. LIABILITY UNDER SECs. 4275 AND 4276, REV. STAT.

Under Sec. 4275, Rev. Stat., the owner of premises "knowingly permitting" them to be used for gaming purposes is liable to the extent of the particular property, and under Sec. 4276, Rev. Stat., the lessor shall be liable civilly and criminally as a principal and to the extent of all his property unless he declare a forfeiture.

8. FORCE OF INCOMPETENT EVIDENCE ADMITTED WITHOUT OBJECTION. Evidence not competent, if objected to when admitted without objection, has its natural probative effect. Hence evidence of the plaintiff in an action for forcible entry and detention of premises that he, "understood or had heard " that the occupant "was the owner of the lease," is hearsay evidence, but having been submitted to the jury without objection, upon review will be considered as some evidence of the ownership of the lease thereof.

9. PRESUMPTION AS TO OWNERSHIP.

In an action for forcible entry and detainer by the owner of the fee against one in possession of leased premises, the latter will be presumed to be the assignee of the lessee unless the contrary is shown. So where it is shown that gambling was permitted or carried on upon the premises occupied by the defendant, with his knowledge, that he paid the rent, taking receipts therefor in the name of a prior lessee, that he bought the fixtures from his predecessor and gave a chattel mortgage upon them and that he owned the lease, the question of ownership of the lease is properly submitted to the jury to determine.

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