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Action by George P. Butler against Rich entitled to the thing contracted for in specie, ard H. Wright. From an order of the Ap which to b.m has some special value, and pellate Division (93 N. Y. Supp. 113), re which he cannot readily obtain in the market, versing a judgment for plaintiff entered on or in cases where it is apparent that conipenthe report of a referee, and granting a new sation in damages would not furnish a comtrial, plaintiff appeals. Reversed, and judg- plete and adequate remedy. But in each ment entered on the report of the referee. case the question as to whether a court of Affirmed.

equity will take jurisdiction and grant the

relief asked for rests in the sound discreCharles F. Mathewson, for appellant. Delos McCurdy, for respondent.

tion of the court, and it cannot be demanded

as a matter of right. Johnson v. Brooks, HAIGHT, J. This action was brought to

93 N. Y. 337; Matter of Petition of Argus compel the specific performance of a contract Co., 138 N. Y. 557, 572, 34 N. E. 388; Wilfor the purchase and sale of stock. The con

liams v. Montgomery, 148 N. Y. 519, 43 N. 'tract upon which the action is based was to

E. 57; Bomeisler v. Forster, 154 N. Y. 229, the effect that the plaintiff agreed to procure

48 N. E. 534, 39 L. R. A. 240; Lighthouse v. and turn over to the defendant all of the Third Nat. Bank, 162 N. Y. 336, 56 N. E. capital stock of the Economy Packing Com 738. The question, therefore, that was prepany, a New Jersey corporation, and that the sented to the Appellate Division for its dedefendant agreed to pay therefor by deliver

termination was one calling for the exering to the plaintiff 500 shares of the capital

cise of its sound discretion, and this discrestock of the Wright's Automatic Tobacco

tion was to be exercised upon a consideration Packing Machine Company, a West Virginia

of the facts and circumstances disclosed by corporation.

the record in the case. That court, as we The chief question of fact litigated upon

have seen, has reversed the judgment. While the trial was the alleged false and fraudulent

it cannot be said, as matter of law, that representations made by the plaintiff to the

there was no evidence to sustain the finddefendant, by which he was induced to enter

ings of fact by the referee, it was authorized into the contract. But this issue was found to reverse, in its discretion, upon a considerby the referee in favor of the plaintiff, thus

ation of the facts, but it was not bound or disposing of that branch of the case so far

authorized to do so as a question of law. as this court is concerned. The complaint

The difficulty is that the court, in its order further alleged, in substance, and the referee of reversal, has failed to state that the rehas found as facts, that the stock of the versal is based upon the facts or in the Wright Company had never been listed on

exercise of its discretion. Under the proviany exchange, or had any quoted value or

sions of the Code alluded to, we are comany definite market price, or any certain

pelled to assume that it was reversed upon value capable of exact ascertainment; that

the law only. This cannot be sustained, and the defendant was the owner of at least 92

it follows that the order of the Appellate Diper cent. of the stock, and controlled the

vision must be reversed, and judgment enterbalance. Upon these facts the referee found

ed upon the report of the referee affirmed, that the plaintiff had no adequate remedy at

with costs in all the courts. law, and therefore ordered specific perform

CULLEN, C. J., and VANN, WILLARD ance of the contract. To these conclusions,

BARTLETT, and HISCOCK, JJ., concur. appropriate exceptions were taken by the

WERNER, J., dissents. GRAY, J. absent. defendant. The Appellate Division has reversed the judgment entered upon the report Order reversed, etc. of the referee and ordered a new trial. The order of reversal does not specify the ground;

(75 Oh. St. 182) and, therefore, under section 1338 of the Code

TAFEL v. LEWIS, Auditor, et al. of Civil Procedure, we are required to pre

(Supreme Court of Ohio. Oct. 30, 1906.) sume that the judgment was not reversed or

TAXATION the new trial granted upon a question of

PROPERTY SUBJECT BONDS IN

HANDS OF EXECUTORS. fact.

Bonds coming in this state into the possesIt will be observed that the agreement sion of a resident executor who derives his auwhich the plaintiff seeks to have specifically thority under the will by appointment of the performed was in its character executory,

probate court of the county of his residence,

are taxable in this state, notwithstanding that and that, upon its breach, the plaintiff had

the will was executed and probated in a foreign the right to resort to such remedy as the country and the testator was at the time of his law afforded, and the question now arises

decease a nonresident of this state, and all bene

ficiaries are likewise nonresidents. as to whether a court of equity should enter

[Ed. Note.-For cases in point, see vol. 45, tain jurisdiction and compel specific per

Cent. Dig. Taxation, $ 199.] formance, or whether he should be remitted

(Syllabus by the Court.) to a court at law to recover the damages which he has sustained. The rule is that, Error to the Superior Court of Cincinas to contracts pertaining to personal prop nati. erty, a party should be confined to his action Action by one Tafel, executor, against Lew. for damages, unless it appears that he is is, auditor, and Roth, treasurer, of Hamilton

county. Judgment for defendants and plaintiff brings error. Aslirmed.

The plaintiff in error, as executor of one Reuter, deceased, commenced action in the superior court of Cincinnati against Lewis, auditor of Hamilton county, and Roth, treasurer, seeking to perpetually enjoin those officers from enforcing taxation of certain bonds held by him as such executor. It was averred that the plaintiff was appointed and qualified as executor of the last will and testament of said Reuter by the probate court of Hamilton county, the said will being executed and probated in Cassel, Germany, and duly admitted to record by the said probate court of Hamilton county; that Reuter at the time of the probate was and for many years had been a resident of Cassel, Germany; that all the beneficiaries under the will are nonresidents; that at the time of his death Reuter was the owner of certain bonds deposited in a deposit company in the city of Cincinnati which 'came into the possession of the plaintiff in the course of the administration of the affairs of his trust. The ward assessor, against the protest of plaintiff, returned the bonds to the value of $6,210 for taxation, and the defendants threaten and are about to place the said assessment upon the county tax duplicate, and collect the tax upon the same. A demurrer to the petition was sustained by the superior court at special term and judgment for defendants rendered, which judgment was affirmed by that court at general term. To reverse those judgments the executor brings this error proceeding in this court.

Gustav Tafel, for plaintiff in error. Ire ton, Collins, Schoenle & Poor, for defendants in error.

shall be passed taxing, by a uniforin rule, all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise; and also all real and personal property, according to its true value in money.” Conformably with this requirement the General Assembly, by sections 2730 to 2736, inclusive, of the Revised Statutes of 1906, has made provision that property, including bonds, “held by persons residing in this state whether for themselves or others," shall be subject to taxation; that every person of full age and sound mind shall list the personal property of which he is owner, and moneys invested, loaned or otherwise controlled by him on account of any person or persons; that the property of every estate of a deceased person shall be listed by the executor or administrator; that property SO held shall be listed in the same township, city or village in which such person is required to list his own property ; that every person required to list property shall, annually, make out and deliver to the assessor a statement of all personal property, including bonds in his possession or under his control, on the day preceding the second Monday of April of that year, either as owner or holder thereof, or as executor or administrator. Thus property to be taxed, the person who is to list it, the place where it is to be listed, and the time when to be listed, are all distinctly and definitely provided for. It results from this that it is the duty of the holder to list where he is (1) the owner, (2) where he holds for others, and (3) where he holds as executor.

Taking these several provisions together can there be any doubt that the legislative intent is to include bonds held by an executor? We think not. Not only are they held, speaking in general terms, "for others,” that is, in the interest of others, but they are under the dominion, the control, of the executors, subject only to the orders of the probate court. The general rule is, that where such property is held here in the possession and under the control of the one so having the possession, it is taxable here, although where held here subject to the control of a nonresident owner it may not be. It is conceded that in general the situs of a debt is at the residence of the creditor, although this rule is subject to exceptions (Hubbard, Treasurer, v. Brush, 61 Ohio St., 252, 55 N. E. 829). But in the present case the legal title is in the executor, and in this sense he is the owner. And, if this view be correct, then the estate was annexed to his person, and thereby had an actual situs in this state. It may be that these provisions were not necessary to fix the liability to so list on the executor, because of the specific provision applying in terms to executors, but they serve to show the scope and intent of the statute, and leave its real meaning relieved of rational doubt.

It is insisted that these bonds are liable to taxation in Germany, and that to tax them here would result in double taxation. The

SPEAR, J. (after stating the facts). The record presents the question whether or not bonds coming in this state into the possession of a resident executor who derives his authority under the will by appointment of the probate court of the county of his residence, are taxable in this state, notwithstanding that the will was executed and also probated in a foreign country, and the testator was at the time of his decease a nonresident of this state, and all beneficiaries are likewise nonresidents.

It is not necessary to follow the able arguments of the learned counsel by a discussion of the principles upon which the power of taxation rests under our system of government, nor attempt to notice the many limitations which have been declared to exist upon the legislative exercise of that power. It will suffice to direct inquiry respecting the proper answer to the specific question above stated, and, as it seems to us, the tenor of that answer cannot admit of serious doubt. The mandate of section 2, article 12, of our Constitution is the warrant for taxation of property in this state. That is: "Laws

proposition is not tenable. The power of taxation conferred by our constitution cannot be made to depend upon the operation of laws of a foreign jurisdiction.

It is further urged that these bonds should not be taxed in Ohio because the property right in them passed to the testator's heirs instantly at his death, and that, as they reside outside the state, their property is not subject to our tax laws. No fact in support of the assumption that the property in the bonds passed at once to any beneficiary or beneficiaries under the will appears by the petition, It is not shown or claimed that these specific bonds were bequeathed to anybody. Hence the title vested in the executor and the question attempted to be made by this proposition is not fairly in the case. We have not overlooked the cases of Grant v. Jones, 39 Ohio St., 506, or McNeill, Assiguee, v. Hagerty, Auditor, 51 Ohio St., 255, 37 N. E. 526, 23 L. R. A. 628. Neither case controls, or materially affects, the case at bar.

As conclusion, we are of opinion that, notwithstanding the fact that the will was executed in a foreign country, and that at his decease the testator was a resident of that country, and that the beneficiaries under the will are all nonresidents of the state, the bonds were properly taxable in Hamilton county, and it was the duty of the executor to return them for taxation because the statute, in plain terms, so directs.

Judgment affirmed.

moves the court to quash the indictment herein against said defendant, by reason of a certain defect apparent upon the face of the record, in this, to wit: It is apparent from the record herein that the minor child herein referred to was not born in lawful wedlock.” This motion to quash was overruled by the court, whereupon the defendant filed the following plea in abatement: "The said Emrich Veres says that the said state of Ohio ought not further to prosecute the said indictment against him, because he says that on July 21, 1904, he, the said defendant herein, was arrested upon a paternity charge preferred by one Julia Radoczi, an unmarried woman, and taken before the city and justice court of the city of Toledo, Port Lawrence township, Lucas county, Ohio, where a hearing on said charge was had, and that on or about July 21, 1904, he, the said defendant herein, was held by said court to the court of common pleas of Lucas county, Ohio, to answer to said charge. That defendant herein, consistent with the order of said city and justice court, gave bond for his aprearance in the common pleas court of Lucas county, Ohio, to answer to said paternity charge, and that pending the hearing of said charge in said common pleas court the defendant herein was, on or about February 20, 1905, arrested and taken before one C. H. Barks, a justice of the peace in and for Adams township in said Lucas county, Ohio, charged with neglect of minor child under the age of sixteen years, the said minor child being the same for which on a paternity charge the defendant herein had, as heretofore set forth, given good and proper bond to appear and defend against in said court of common pleas of Lucas county, Ohio. That said Justice Barks, on or about February 23, 1905, held the defendant herein in bond in the sum of $1,000, to the grand jury of Lucas county, Ohio, to answer to the charge of neglect of said minor child. That afterwards, to wit, on or about April 12, 1905, the grand jury of Lucas county, Ohio, returned an indictment against said defendant herein, and said defendant was duly arrested by virtue of said indictment for neglecting his minor child, said minor child being the same heretofore referred to in the paternity charge, as heretofore set forth. Defendant herein says that he is not the father of the child, Albert Radoczi, of whom one Julia Radoczi is the mother; that he, the said defendant herein, las always denied any responsibility for said child, and defendant has been willing and anxious to have said paternity proceeding against him so, as heretofore set forth, brought against him in the court of common pleas of Lucas county, Ohio, tried and determined. And this he, the said Emrich Veres, is ready to verify. Wherefore he prays judgment, and that by the court he may be dismissed and discharged from the said premises in the said indictment speci

SHAUCK, C. J., and PRICE, CREW, SUMMERS and DAVIS, JJ., concur.

(75 Oh. St. 138)

STATE y. VERES. (Supreme Court of Ohio. Oct. 16, 1906.) PARENT AND CHILD-FAILURE TO SUPPORT

CRIMINAL PROSECUTION-PLEA IN ABATEMENT.

The pendency of a bastardy proceeding instituted against the father of an illegitimate child is neither a bar to nor ground for the abatement of a criminal prosecution subsequently commenced against him by the state under section 3140-2, Rev. St. 1906.

(Syllabus by the Court.)

Exceptions from Court of Common Pleas, Lucas County.

Emrich Veres was indicted for failure to support his niinor child. From an order sustaining a plea in abatement, the commonwealth excepts. Exceptions sustained.

At the April term, 1905, of the court of common pleas of Lucas county, Ohio, the defendant, Emrich Veres, was, under favor of section 3140–2, Revised Statutes of 1906, indicted by the grand jury of said county for neglecting and refusing to support his minor child. Said child was referred to and designated in said indictment by the name of Albert Radoczi, alias Albert Veres. Το this indictment the defendant filed the following motion : "The said Emrich Veres

fied." This plea in abatement, having been ever, if after conviction and before sentence submitted to the court on an agreed state he shall appear before the court in which ment of facts, was adjudged in favor of said conviction shall have taken place, and the defendant. To this decision of the court enter into bond to the state of Ohio, in the the prosecuting attorney duly excepted, and penal sum of one thousand dollars, to the on behalf of the state now prosecutes this approval of the court as to surety, conditionproceeding to obtain the decision of this court ed that he will furnish said child or children as to the law to govern in similar cases. with necessary and proper home, food, care Lyman W. Wachenheimer, Pros. Atty.,

and clothing, or, if said child or children for the State. Parks Hone, for defendant.

be in a county or district children's home,

that he will pay to the trustees of said home CREW, J. (after stating the facts). The

the reasonable cost of keeping said child or plea in abatement in this case was sustained

children while remaining in the same, to be by the court of common pleas upon the

fixed by the court as to the amount and ground, and for the sole reason, as appears

times of payment, then said court may sus

And proof record, that the state was without right pend sentence therein: to indict or prosecute the defendant, Em

vided further, that upon a failure of said parrich Veres, under section 3140-2, Revised

ent to comply with said order and undertakStatutes of 1906, for failure to support his

ing, he or she may be arrested by the sheriff

or other officer on a warrant issued on the alleged illegitimate minor child, so long as the bastardy proceeding instituted against

precipe of the prosecuting attorney, and him by the mother of said child was pending brought before the court for sentence, where . and undetermined. The correctness of this.

upon the court may pass sentence, or, for ruling is the sole question presented by this

good cause shown, may modify the order record. It was recently decided by this court

and take a new undertaking and further susin the case of Ogg v. State, 73 Ohio St. 59,

pend sentence as may be just and proper.” 75 N. E. 943, that an indictment under sec

As will be observed, there is nothing whattion 3140-2, Revised Statutes of 1906, for

ever in the language of the above act that

indicates or suggests a purpose or intent on failure to provide for an illegitimate minor child, need not allege that, in a previous

the part of the Legislature that the provi

sions thereof should only be invoked after a proceeding under the bastardy act, the accused had been adjudged to be the reputed proceeding under the bastardy act had been

commenced and terminated. Nor is there father of such child, and, further, that evidence of such prior adjudication was not es

anything in the nature of the relief given sential to a valid conviction on such in

or the punishment prescribed that discloses a dictment. With this holding and view of

reason why the mere pendency of a bastardy the law we are still content. It therefore

proceeding previously instituted should be a only remains, in the present case, to inquire

bar to, or should furnish a ground for the

abatement of a criminal prosecution subwhether the pendency of a bastardy proceed

sequently commenced under this section. ing instituted by the mother of an illegitimate child is a bar to, or may be pleaded

While the two acts are so designed and

drawn that each provides a remedy for the in abatement of, a prosecution by indictment

enforcement of the same natural duty, namesubsequently brought against the father of

ly, the support by the father of his illegitisuch child under section 3140-2, Revised

mate child, in this respect only are they Statutes of 1906. This section, which is com

alike, either in their provisions or purpose. paratively of recent enactment, provides as

And, the remedies they afford for the enfollows: "The father. or, when charged by

forcement of this duty being entirely conlaw with the maintenance thereof, the mother, of a legitimate or illegitimate child or

sistent with each other, the rule is well set

tled that the satisfaction of one is the only children under sixteen years of age, living in this state, who being able, either by rea

bar to the prosecution of the other. In the son of having means, or by personal services,

present case the plea of defendant does not labor or earnings, shall neglect or refuse to

allege or show any judgment rendered or provide such child or children with necessary

final order made in the bastardy proceeding and proper home, care, food and clothing,

instituted against him by the mother. Nor or said child being legally an inmate of a

could any order made in that proceeding county or district children's home, shall neg

charging him with the maintenance and suplect or refuse to pay to the trustees of such

port of the child avail him as a defense in children's home the reasonable cost of keep

the criminal prosecution instituted against ing such child in said home, shall upon con

him under section 3140-2, unless it should viction be deemed guilty of a felony and pun

appear that he was complying with said orished by imprisonment in the penitentiary

der and furnishing such support. for not more than three years, nor less than

Exceptions sustained. one, or in a county jail or in a work house at hard labor for not more than one year, SHAUCK, C. J., and PRICE, SUMMERS, nor less than three months: Provided, how- / SPEAR, and DAVIS, JJ., concur,

(75 Oh. St. 144)

1904. The petition further alleges that at BEVERSTOCK v. BOARD OF EDUCATION the time of holding said county institute, the OF BOWLING GREEN CITY SCHOOL schools in said district were not in session DIST. OF WOOD COUNTY et al.

and had not been in session for more than (Supreme Court of Ohio. Oct. 16, 1906.) two months prior thereto, and for the year SCHOOLS AND SCHOOL DISTRICTS-TEACHERS,

1904 did not convene for about two weeks COMPENSATION.

thereafter, and will not, for the year 1905, Where a board of education has employed convene for about two weeks thereafter, and teachers for the public schools of the district for the school year next ensuing thereafter,

that said schools, within said district, were and such teachers, during vacation and after not dismissed for the purpose of attending their employment, attend the county institute such institute, and that all the teachers who during the week it is held in the same county, said board is authorized by the provisions of

are proposed to be paid by the order of section 4091, Rev. St. 1906, to pay them for

the board of education so passed on August the institute week as an addition to their first 21, 1905, were, at the time of attending said month's salary as fixed by the terms of their institute, duly and regularly employed as employment, and at the same rate, on presentation of the certificates prescribed by said section.

teachers, by the board, both during the time (Syllabus by the Court.)

of the institute held in August, 1904, and

during the time of the institute being held in Error to Circuit Court, Wood County.

August, 1905. It is alleged that the payment Action by one Beverstock, a taxpayer of

of said teachers so authorized is illegal and the Bowling Green City School District of

contrary to law, and is a diversion and misWood county against the board of education

appropriation of the funds raised by taxation of the Bowling Green City School District of

for the purpose of conducting the schools of Wood county and others. The circuit court

said district, and that, unless restrained by affirmed a judgment sustaining a demurrer

the court, said funds will be unlawfully and dismissed the petition, and plaintiff withdrawn from the treasury and so dibrings error. Affirmed.

verted and misappropriated, to the irreparable On the 24th day of August, 1905, the damage, loss, and injury of this and other plaintiff in error, as a taxpayer resident of taxpayers of said district. This action is the city of Bowling Green, and also resident brought on behalf of the plaintiff as a taxof the Bowling Green school district of payer of said district and of the other taxWood county, Ohio, filed his petition in the payers of said district, and that by the action court of common pleas of that county, in of said board there will be unlawfully paid which he asked an injunction against said out of the funds so raised by taxation about board of education, forbidding it to pay cer $800. A temporary injunction is prayed tain persons who had been employed to against said acts of the board and its clerk, teach in its schools, for the time they occu and that, on final hearing, the injunction be pied in attending the county institutes, and made perpetual. The defendants demurred forbidding the clerk of said board issuing generally to the petition, and the court overan order for their payment for said period. ruled the demurrer, and made the injunction The more particular averments of the petition perpetual. On error to the circuit court, are, that annually, in the month of August, that court sustained the demurrer, dissolved there is held in Wood county, a county in the injunction, and dismissed the petition. stitute, at which a great many of the teach Error is prosecuted in this court to reverse ers employed throughout the county attend the judgment of the circuit court. · for the purpose of more efficiently preparing

Edward Beverstock, for plaintiff in error. themselves for the occupation of a teacher ;

J. W. Grabiel and James 0. Troup, for dethat said county institutes are usually held fendants in error. from the 20th day of August to the 25th day of the same month. Prior to the 20th day PRICE, J. (after stating the facts). The of August each year, the said board of educa decision of the present controversy depends tion employs all teachers, superintendent, and upon a proper understanding of section 4091, principals necessary for the instruction of Rev. St. 1906, which provides: "All teachthe pupils of the schools in said district, for ers of the public schools within any county the year beginning on the first Monday in in which a county institute is held may disSeptember following the holding of said miss their schools for one week for the county institute in August; and that on purpose of attending such institute, and when the 21st day of August, 1905, the said board such institute is held while the schools are in of education authorized its clerk to issue session the boards of education of all school an order to all teachers who present certifi districts are required to pay the teachers cates of attendance at the institute held Aug. of their respective districts their regular salust 21 to August 25, 1905, for the payment ary for the week they attend the institute of such sum due them for one week's pay, upon the teachers presenting a certificate of according to the rate for which said board full regular daily attendance at said institute hired them for the ensuing year, and also signed by the president and secretary thereof; authorized the clerk to issue orders to such the same to be paid as an addition to the of the teachers as presented certificates for first month's salary after said institute by attendance at the institute held in August, the board of education by which said teacher

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