taxation; and the stock of a shareholder in a bank being returnable by the cashier, though the indebtedness of a stockholder has been erroneously deducted from the value of his shares by the county auditor, such deduction cannot be placed on the duplicate as an omission, and the taxes collected thereon.

Original application for mandamus by the state on relation of state auditor against one Akins. Writ refused.

J. M. Sheets, Atty. Gen., J. E. Todd, Asst. Atty. Gen., F. S. Monnett, and S. W. Bennett, for plaintiff. W. W. Boynton and Norton T. Horr, for defendant.

PER CURIAM. A stockholder in a nation. al or incorporated bank has not the right to have his indebtedness deducted from the value of his shares by the county auditor; but, when this has been done in former years, there is no law by which the deduction can thereafter be placed on the duplicate as an omission, and the taxes collected thereon. Sections 2781, 2782, Rev. St., apply only to persons required to make returns of their property for taxation; and the stock of a shareholder in a bank is returned, not by himself, but by the cashier, and is assessed by the auditor. The remedy for a false return by the cashier is provided for in section 2769, Id. There was, however, no false return by the cashier in this case. Writ refused.

(63 Ohio St. 125)

WARD et al. v. WARD. (Supreme Court of Ohio. June 19, 1900.) FRAUDULENT CONVEYANCE - ANTICIPATION OF MARRIAGE-RIGHT TO DOWER. A conveyance by a man who has entered into a contract of marriage, which subsequently takes place, of a portion of his land to his sons by a former marriage, without consideration other than love and affection, and without the knowledge or consent of his contemplated wife, is a fraud on her marital rights, and she, at his death, is entitled to dower therein. Spear, J., dissenting.

(Syllabus by the Court.)

Error to circuit court, Richland county. Action by Mrs. John Ward against C. C. Ward and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Bell & Brinkerhoff, for plaintiffs in error. Laser & Huston, for defendant in error.

MINSHALL, J. The plaintiff below, as appears from her amended petition, being the widow of John Ward, deceased, brought suit to set aside certain antenuptial deeds that had been made by her husband to his children by a former wife, and to be endowed in the lands, on the ground that the conveyances were voluntary and in fraud of her rights as a wife; she being without knowledge of the facts at the time of the marriage. The case was appealed to the circuit court, and there decided in favor of the plaintiff. There is no finding of facts, the finding being simply

in favor of the plaintiff, and that she is entitled to dower in the land. But a bill of exceptions was taken containing all the evidence and made part of the record. The material facts are, however, not in dispute. Prior to November 18, 1892, John Ward, a widower, living in Richland county, Ohio, was the owner of 106 acres of land, which he had acquired during the life of his first wife. He had five children, all grown and married, -three sons and two daughters. His eldest son, C. C. Ward, lived on the premises, and occupied a house on 7 and a fraction acres, which he had purchased from his father for $300, but for which he had no deed. As to this tract, however, there is no controversy. On November 18, 1892, in contemplation of marriage, he executed and delivered to C. C. Ward a deed for 25 acres, including the 7 acres and a fraction. On the next day he executed a deed to H. N. Ward for about 13 acres, and on November 23, 1892, he executed a deed to his other son for 18 acres, and in the evening of the same day he married Catherine Stough, who is now his widow and plaintiff below. There is some controversy as to when these deeds were delivered, but we will assume that they were delivered, as claimed, before the marriage. She, however, had no knowledge of their existence at the time of the marriage, nor until after the death of her husband, when they were placed on record. They were, in each case, voluntary deeds, supported by no other consideration than the love and affection of a father for a son, except as to the 7-acre tract contained in the deed to the eldest son, and which, as we have stated, is not in question.

The question, then, arises upon this state of facts, whether the plaintiff is entitled to dower in the lands covered by these deeds, except the 7 acres. We think she is. They were all voluntary deeds, made in contemplation of marriage. It can make no difference in principle whether actual fraud was intended or not; their execution and delivery before the marriage, without her knowledge or means of knowledge, operated a legal fraud on what would be her rights in case of marriage. A desire to provide for the children of his former wife was both natural and proper, but, as they had no legal claims upon his bounty, before he could rightly, in contemplation of marriage, dispose of his property to them for such purpose, it became his legal duty to disclose his purpose to one who, by her intermarriage with him, would become vested by law with a legal interest in the property that could not be devested without her consent. A father's legal duty to his children in no case requires him to practice a fraud on his wife or any one else. If after entering into a contract of marriage, if not before, he desires to make provision for his children by a former wife, it is his duty to communicate that fact to his intended wife, if thereby her rights are to be affected, that she may have an opportunity to say whether she consents to the disposition before con-,

summating the agreement to marry. A failure to do this is, at least, a constructive fraud. In Arnegaard v. Arnegaard, 7 N. D. 475, 75 N. W. 797, 41 L. R. A. 258, where the question has received careful consideration upon principle and authority, it is said: "Whatever may have been formerly held, it has become settled in these latter days that the purpose to deceive and defraud the other prospective spouse is imputed to the one who makes the attempted transfer, and conceals the fact until after marriage." In England, for reasons largely relative to the custom that there prevails of making a settlement in lieu of dower, called a "jointure," before marriage, less consideration has been given to antenuptial conveyances by the husband, while such conveyances by the wife are uniformly held invalid. But in this country no such distinction is made, and the decisions are, as said in the case just cited, practically unanimous that the mere fact that a secret transfer was made after the engagement is conclusive on the question of fraud so far as the right of dower is concerned. In some of the cases the element of actual fraud was shown to have existed, and some of the rulings are placed on that ground, but, as said in the case just referred to: "In the great majority of cases the broad rule is enunciated that a man owes to the woman to whom he is betrothed the utmost good faith, and that he cannot, consistently with that sacred obligation, secretly devest himself of property in which she would by marriage secure rights which would thereafter be beyond his control." This proposition is fully sustained by the decisions: Swaine v. Perine, 5 Johns. Ch. 482; Chandler v. Hollingsworth, 3 Del. Ch. 99; Smith v. Smith, 2 Halst. Ch. 515; Youngs v. Carter, 50 How. Prac. 410, affirmed on appeal 10 Hun, 194; Cranson v. Cranson, 4 Mich. 230; Pomeroy v. Pomeroy, 54 How. Prac. 228; Davis v. Davis, 5 Mo. 183; Gainor v. Gainor, 26 Iowa, 337: Thayer v. Thayer, 14 Vt. 107. See, also, Stew. Mar. & Div. § 44; Beach, Cont. § 1309. In Westerman v. Westerman, 25 Ohio St. 500, it appeared that the wife, in contemplation of marriage with the plaintiff, and after she had entered into the engagement, conveyed certain of her lands to two sons by a former marriage without consideration. The land had not been fully paid for, and the husband was compelled by suit to pay the balance of the purchase money. The court held the conveyance to be a fraud on the marital rights of the husband; that the wife was primarily liable for the amount due, and substituted the husband, for the purpose of indemnity, to the place of the vendor as against the land. This case recognizes the principle that the parties to a contract of marriage are bound by the obligations of good faith, and that neither can thereafter by voluntary gifts affect such legal rights as either may acquire in the property of the other by marriage without the consent of the party to be affected. After adverting to the rule in England that permitted a man, after con

tracting marriage, to make antenuptial conveyances of his lands, and the rigidity with which a like right was denied to the contemplated wife, and pointing out the reason for this difference, Daniels, J., in Youngs v. Carter, supra, says: "There never was any good reason why the disability imposed in this respect upon the wife should not be equally applied to the conduct of the husband. If it was inequitable for her to convey away her property in anticipation of marriage, in order to prevent it from becoming subordinate to her husband's anticipated rights in it, it was equally so for him to do the same. The principle that restrained her should be equally as effectual over him; for, if the act of one was a fraud, it was certainly no less so when it was performed by the other. In Chandler v. Hollingsworth, supra, the inability of the husband by an antenuptial conveyance to affect the wife's right of dower after the contract of marriage has been entered into, without her knowledge, is placed on the ground that dower is a property right, which she acquires by the marriage, and that such conveyance is as much a fraud on her rights as a conveyance to defraud future creditors. Speaking of the "unjust discriminations made by the English courts of equity, in withholding from the wife such protection as is given the husband against secret antenuptial settlements," and the reasons therefor, the chancellor says: "But in this country clearly the same reasons do not apply. Her dower is the only provision made by law for the wife out of the husband's real estate. Practically it is a most important resource, and the only form of provision out of real estate enjoyed by her, except under wills. It does, in fact, to a large extent, enter into the wife's expectations in contracting marriage, and properly so. It therefore ought to receive all the protection accorded to any marital right. To refuse it would, in this country, where jointures are unknown, render the right of dower precarious, if not wholly illusory."

It may be worth while to observe that the settlement of a jointure on a wife before marriage, in lieu of dower, freed the remaining lands of the husband from the marital right of the wife to dower in his remaining lands; and so antenuptial conveyances, under such circumstances, by a man under contract to marry, would not be open to the same imputation of bad faith as where no such settlement had been made. For the reason and origin of the rule in England as to antenuptial conveyances by the husband, see the intelligent account given by the chancellor in Chandler v. Hollingsworth, 3 Del. Ch., at pages 115, 116.

This annunciation of the law does not interfere with the power of the contemplated husband to make provision for his children by a former marriage. It only requires that in doing so he shall not dispose of that which, by the law of marriage, the wife will acquire as a legal right incident to the relation. He may dispose of his property in this regard as

he thinks proper, subject, however, to his wife's right of dower. Judgment affirmed.

SPEAR, J. (dissenting). I am of opinion that a widower who is contemplating a second marriage, and has entered into a contract for that purpose, has a legal, as well as a moral, right to convey a fair proportion of his real estate to his children by the deceased wife, and that love and affection is a sufficient consideration to support such conveyance. Nor is such conveyance in any sense an injustice to, much less a fraud upon, the second wife, and ought not to be even a disappointment to her. I am not ready to accept the implication of mercenary motives on her part which the opposite doctrine supposes. The statute gives the widow dower in the lands of which her late husband died seised. The deceased did not die seised of the lands in controversy in this case, and hence the defendant in error is not entitled to dower.

(63 Ohio St. 165)

STATE ex rel. GUILBERT, State Auditor, v. HALLIDAY, County Auditor.

(Supreme Court of Ohio. June 19, 1900.) IRRECONCILABLE STATUTES-CONSTRUCTION. 1. In so far as two statutes are irreconcilable, effect must be given to the one which is the later.

2. A bill cannot become a law until it has been signed by the presiding officer of each house, and, when one bill was so signed after another bill so signed on the same day, the former is the later enactment.

(Syllabus by the Court.)

Application by the state, on the relation of one Guilbert, state auditor, against one Halliday, auditor of Franklin county, for a writ of mandamus. Demurrer to the answer sustained, and mandamus allowed.

The 74th general assembly enacted two laws, each purporting to amend and supplement section 2813 of the Revised Statutes. They are designated as "House Bill No. 777" and "Senate Bill No. 309." By house bill No. 777 it is provided that "the decennial county board of equalization shall complete its work of equalization on or before the fourth Monday of February

next

following the beginning of the equalization." By senate bill No. 309 it is provided that the county board of equalization "shall convene at the office of the county auditor on the third Monday of July, one thousand nine hundred, and every tenth year thereafter; and shall close their sessions on or before the first Monday in October then next following." Both of these bills were passed and signed on the same day,-April 16, 1900; but the relator avers that senate bill No. 309 was signed by the president of the senate and the speaker of the house after house bill No. 777 was signed. The defendant, in his answer, "admits the enactment of said laws as averred in the petition." The relator alleges that he instructed the defendant that. in pursuance of his duties as auditor of Franklin

county, he should observe the provisions of said senate bill No. 309 as governing the sessions of the decennial county board of equalization, and that defendant refuses to obey said instruction; and the relator prays for a writ of mandamus to compel defendant to observe the requirements of section 2813 of the Revised Statutes, as amended by said senate bill No. 309. The answer of the defendant assigns as a reason for not obeying the instruction of the relator that both of said laws so passed are so irreconcilable that effect cannot be given to either, and that the old section 2813 of the Revised Statutes has not been thereby repealed, amended, nor supplemented. The relator demurs to the

answer.

J. M. Sheets, Atty. Gen., J. E. Todd, Asst. Atty. Gen., and Smith W. Bennett, for relator. Taylor, Seymour & Webber, for de fendant.

PER CURIAM. In so far as these two enactments are irreconcilable, effect must be given to the one which is the later law. State v. Commissioners of Shelby Co., 36 Ohio St. 326. A bill cannot become a law until it has been duly signed by the presid ing officer of each house. Const. art. 2, § 17. State v. Kiesewetter, 45 Ohio St. 254, 12 N. E. 807. It is averred in the petition and admitted in the answer that senate bill No. 309 was signed by the president of the senate and the speaker of the house after house bill No. 777 was so signed on the same day. The former is, therefore, the later enactment. Peremptory mandamus allowed.

(63 Ohio St. 132) PRETZINGER v. SUNDERLAND, Treasurer, et al.

(Supreme Court of Ohio. June 19, 1900.) PUBLIC IMPROVEMENTS-ASSESSMENTSPROPERTY EXEMPT.

Territory which has been assessed for the improvement of a street, to the maximum amount allowed by section 2270 of the Revised Statutes, is exempt, under section 2283, for the period of five years thereafter, from assessment for the improvement of another street; and an assessment levied by municipal authority for the construction of a sidewalk is an assessment for the improvement of the street, within the meaning of the last-named section.

(Syllabus by the Court.)

Error to circuit court, Montgomery county. Action by Rudolph Pretzinger against W. P. Sunderland and others. On appeal from an order overruling a demurrer to the petition, judgment was reversed by the circuit court, and plaintiff brings error. Reversed.

Suit was brought by the plaintiff in error in the court of common pleas of Montgomery county against W. P. Sunderland, the treasurer of that county, and the city of Dayton, to enjoin the collection of an assessment levied on a lot of the plaintiff to pay for a sidewalk which the authorities of the city had caused to be constructed along one line

of the lot. The following is the petition in the case: "The plaintiff, Rudolph Pretzinger, says that he is the owner of that part of outlot twenty-three on the plat of the city of Dayton, Ohio, which lies on the corner of Main street and Wyoming street, fronting 305 feet on Main street, and about 235 feet on Wyoming street. The defendant Sunderland is treasurer of Montgomery county and of the city of Dayton. The defendant the city of Dayton is a city of the second grade of the second class. The city of Dayton, in the year 1895, paved Main street in front of the property of the plaintiff aforesaid, and assessed against it upon the tax duplicate for such paving the sum of about $950. The taxable valuation of said property at the time, as it stood upon the tax duplicate (which is the same now), was only thirty-seven hundred and thirty dollars ($3,730), and the authorities of the city of Dayton, upon application, remitted the excess over twenty-five per cent., and placed against the said property the sum of $932.50, being the one-fourth of such taxable valuation, divided into ten annual installments, with interest, the unpaid portion being yet upon the premises under such assessment. In the year 1894 the city of Dayton passed a resolution to make new sidewalks on Wyoming street along the south line of the property of the plaintiff herein described, and in the year 1896 proceeded to make the same out to Main street. For the cost of making said sidewalk the said city assessed against the property aforesaid the sum of $159.90, and, upon the refusal of the plaintiff to pay, it assessed a penalty of $23.16, and placed upon the duplicate for collection by said Sunderland the sum of $183.06, which said Sunderland is demanding, and will proIceed to collect, if not restrained, by the sale of the property or other process of law. The plaintiff says that, as alleged, his property has already been assessed for its full assessable value for any street improvement, and further assessment is illegal for the period of five years from the year 1895. Wherefore he prays for an injunction against the said Sunderland, as treasurer, to prevent him from attempting to collect the same during the pendency of this suit, and upon the final hearing for a perpetual injunction, and for costs and other relief." A demurrer to the petition was overruled, and, the defendants not desiring to further plead, judgment was rendered for the plaintiff as prayed for in the petition. That judgment was reversed by the circuit court for error in overruling the demurrer, and the case was then brought on error to this court.

McMahon & McMahon, for plaintiff in error. Edwin P. Matthews, City Sol., for defendants in error.

WILLIAMS, J. (after stating the facts). The assessment for the paving of Main street having been levied on the plaintiff's lot in 1895, to the full amount of 25 per cent. of its

** *

taxable valuation, the question here presented is whether on that account the lot is exempt from the assessment laid upon it in 1896 for the cost of the sidewalk constructed on Wyoming street. The exemption of the lot from that burden is claimed by the plaintiff under section 2283 of the Revised Statutes, which provides that "special assessments, whether by the foot front or otherwise, shall be so restricted that the same territory shall not be assessed for making two different streets or avenues, within a period of five years, in such amounts that the maximum assessment herein provided will be thereby exceeded; and so far as practicable under the provisions of this title, regard must be had in making special assessments to the probable benefits to the party assessed." The statutory provision which fixes the amount of the "maximum assessment" referred to in this section, in municipal corporations of the class to which the city of Dayton belongs, is that contained in section 2270, as follows: "The tax or assessment specially levied and assessed on any lot or land, for any improvement, shall, in no case, * amount to more than twentyfive per centum of the value of the property, as assessed for taxation, and the cost exceeding that per centum shall be paid by the corporation out of its general revenue." Certain exceptions are made to this limitation on the amount of the assessment, but the case before us does not come within any of them. So that the assessment in controversy here, having been levied on the plaintiff's lot within five years after that laid for the paving of Main street, cannot be sustained, if both are assessments of the kind mentioned in section 2283,-that is, "for making two different streets or avenues"; and whether they are assessments of that nature or not is the real question in the case. It must be admitted that what is meant by the language of the section, "for making two different streets or avenues," is not free from doubt. In giving construction to the section the rule must be observed that where there is ambiguity in a statute with respect to whether a tax or public burden of that nature is imposed, or authorized to be imposed, it should receive that construction which is most favorable to the citizen or subject sought to be charged with the burden. City of Cincinnati v. Connor, 55 Ohio St. 82-91, 44 N. E. 582. It can scarcely be claimed, and we do not understand it is claimed, that the phrase, "making two dif ferent streets or avenues," is used exclusively in the sense of constructing entirely new streets or avenues, where there had been none before; nor that the restriction imposed by the section against double assessments on the same territory, within the designated period, is confined to cases of that kind. It evidently was the legislative intention that the restriction should include and apply to assessments for improvements made of existing streets; for it was the evil of unreasonable and excessive public burdens arising from local assessments that the statute was

designed to prevent. There is nothing in the section that limits its application to assessments for any particular kind of improvement, further than it must be the improvement of a street or avenue. Such improvement may be made by the construction of sidewalks as well as by paving or otherwise improving the roadway. Sidewalks are a part of the street. Their construction is an improvement of the street which contributes to the convenience of the public in its use, and assessments for their construction are of the same general nature, and levied on the same principle, as those for the improvement of that part of the street between the sidewalks. Moreover, the mischief which it was the purpose of the statute to remedy as certainly arises when the aggregate amount of assessments levied on the same lot for the construction of a sidewalk on one street and the improvement of the roadway of another street exceeds the statutory limit as when that limit is exceeded by assessments for two street improvements of the latter character, and no reason is discovered why the statute should not be applied in the former case as well as in the latter. Both classes of cases appear to be equally with the spirit and intent of the statute. It would seem but just and reasonable that when one-quarter of an owner's estate in land is taken for a municipal improvement made for the public benefit, without other compensation than conjectured benefits, in the estimation of which he has no voice, he should have a brief respite from further burdens of that nature on the same land. We are of the opinion that the assessment which plaintiff seeks to have enjoined was unauthorized, and that the judgment of the circuit court should be reversed, and that of the common pleas affirmed. Judgment accordingly.

(63 Ohio St. 173)

DAVIS et al. v. STATE. (Supreme Court of Ohio. June 19, 1900.)

CRIMINAL LAW-REASONABLE DOUBT. The proper charge to a jury in a criminal case is that the jury, and not that each juror, should be convinced beyond reasonable doubt of the guilt of the accused before finding him guilty.

(Syllabus by the Court.)

Error to circuit court, Cuyahoga county.

Davis and others were convicted for presenting fraudulent bills at auditing office, and leave is asked to bring error. Denied. J. P. Dawley, for plaintiffs in error. Harvey Keeler, for the State.

PER CURIAM. The plaintiffs in error were indicted and convicted in the common pleas court of an offense under section 7075, Rev. St., punishing the making and presenting of fraudulent bills to public accounting officers and boards. The conviction was affirmed by the circuit court, and leave is now asked to file a petition in error in this court to reverse the judgment on various assignments of error. We have carefully examined these assignments, and think there is but one that needs to be noticed. The court was requested to charge the jury that each juror must be convinced beyond a reasonable doubt of the guilt of the defendants before uniting in a verdict of guilty. This the court refused, but did charge that the jury must be convinced beyond a reasonable doubt before finding the defendants guilty. We think the request asked was properly refused, and that the proper instruction was given. The request as asked would seem to invite an acquittal, or at least a disagreement, and was therefore misleading. It is true that each juror must be convinced of the guilt of the defendant before uniting in a verdict against him, and this is generally understood; but it is equally true that each should confer with his fellows, and listen to what they have to urge in weighing the evidence, whether it be for or against an acquittal, and not obstinately stand upon his own opinion in the matter. The request asked and refused by the court would tend to such a result, and was therefore properly refused. State v. Hamilton, 57 Iowa, 596, 11 N. W. 5; State v. Robinson, 12 Wash. 491, 41 Pac. 884; State v. Young, 105 Mo. 634, 640, 16 S. W. 408.

The verdict should be the intelligent consensus of the whole jury, arrived at upon the evidence beyond reasonable doubt. It should be addressed as an entity, and not as separate individuals. If the accused is in doubt as to whether the verdict is that of each juror, his remedy is to have it polled before it separates, which is an adequate protection against the probability that some one of them or more has not united in the rendition of the verdict. Motion overruled.