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fect, and abide the judgment of the court., this case requires him to pay the "condemna. thereupon had.” It was contended that that tion money.” was not in conformity to the statute, and The judgment of the Court of Appeals will that the bond was therefore inoperative. In therefore be affirmed. the opinion the court discussed this matter Judgment affirmed. at length, and stated that prior to 1810 supersedeas bonds were gi en under a statute DAY, ALLEN, and KINKADE, JJ., concur. which contained the condition “that he will prosecute the same to effect, and abide the judgment of the court thereupon had.” In the revision of 1810 the phraseology was changed to substantially the same language RICHEY et al. V. BRETT. (No. 18821.) as now contained in section 12265. By inadvertence the language of the bond was

(Supreme Court of Ohio. May 26, 1925.) made to conform to the provisions of the

(Syllabus by the Court.) statute before revision. The court held, however, that the language had substantially the Receivers Em 200-Parties invoking appoint. same meaning, and that there was therefore

ment of receiver by showing necessity there. no irregularity. In Reynolds v. Rogers'

for not personally liable for receiver's com

missions and expenses of administration, in Ex'rs, 5 Ohio, 170, practically the same prop absence of circumstances creating liability; osition was declared, and the court reaffirm

compensation of receiver and expenses of aded the doctrine of Gardener v. Woodyear, su ministration ordinarily payable from corpus of pra.

property. Fifty years later this court again had oc Parties who invoke the jurisdiction and casion to review the principles of the earlier process of a court for the appointment of a recases, and in Bulkley v. Stephens, 29 Ohio ceiver by sufficient allegations and showing of St. 620, approved those cases, declared that necessity therefor, resulting in such appointthey were sound, and called attention to the ment, do not become personally liable for the fact that the Legislature, with full knowl- compensation of the receiver and the expenses edge of those decisions, adopted the present the absence of special circumstances calling for

of administration of an insolvent concern, in form of conditions to a supersedeas bond. It the application of equitable principles creating might be added at this time to what was such liability. Such debts and expenses are or• said in that case that when the Legislature dinarily payable out of the corpus of the propused different language in the statute govern- erty. ing supersedeas of a judgment in a criminal case, that it knew that the different lan

Error to Court of Appeals, Cuyahoga guage there employed was substantially the

County. same in meaning as the language in the statute governing supersedeas in a civil case. It

Petition by W. E. Richey and another for is contended by counsel in this case that sec- appointment of a receiver of an insolvent tion 13698 should govern, on the ground that theater company, in which Allen Brett was a bastardy proceeding, while quasi criminal appointed. Application of receiver for judg. in nature, partakes more nearly of the qual- ment against petitioners was overruled, and ities of a criminal suit. It has been declared on error to Court of Appeals the judgment by this court in Carter v. Krise, 9 Ohio St. was reversed and rendered for receiver, and 402, and in Perkins v. Mobley, 4 Ohio St. 668, a motion to certify cause to Supreme Court that such a proceeding is quasi criminal.

allowed. Reversed.-[By Editorial It is true that the issues are made by af- Staff.] fidavit, and not by petition and answer, and

This cause originated in the court of comit is true that the form of verdict is guilty or not guilty, but it is also true that the re- tition of Richey and Moeller against an in

mon pleas of Cuyahoga county upon the pelief sought is not punishment of the defendant, but to provide for the support and main- solvent theater company for the appointment tenance of the child, and to indemnify the of a receiver to take charge of the property public against the child becoming a public of the company and “to operate the said comcharge. The action is therefore criminal in pany, if deemed advisable under the direction form, but the relief sought and the ultimate of the court,” and to sell all corporate propend to be attained are clearly of a civil na- erty and distribute the proceeds. Plaintiffs ture. It is not necessary to resort to refine- were stockholders and owners of a part of ments of reasoning to ascertain definitely the an issue of second mortgage bonds, and sued character of such a proceeding. It is suffi- on behalf of themselves and other numerous cient to state that, whether the supersedeas holders of such bonds. Proper allegations bond is drawn under the one or the other of were set forth, and proper showing made rethese sections, the result is substantially the sulting in the appointment of a receiver, who same, to wit, to require the defendant to duly qualified. Some weeks thereafter the abide the judgment of the court, which in receiver made application for authority to

Om For othor cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(148 N.E.) operate the business, and it does not appear to retax costs, the judgment in the Court of that the plaintiffs in the action joined in the Appeals is likewise a judgment upon retaxarequest or took any part in that application tion of costs. It is claimed by plaintiffs in one way or the other. That order was made error that this summary process was a violaJuly 8, 1922, and the business was operated tion of the constitutional guaranties of due until December, 1922, at considerable loss. process, but plaintiffs in error should not On September 23, 1922, the trustee of both be heard to complain upon this point, befirst and second mortgage bonds filed a sep- cause they submitted themselves to the juarate suit in the same court for foreclosure risdiction of the common pleas court and of the two mortgages and sale of premises. were successful in that hearing. No excepNothing appears in this record about such tions were taken in the trial court to the foreclosure and sale, except the application jurisdiction of the court, or its processes, of the trustee for leave to file petition in and no jury was at that time demanded. We foreclosure. Neither does it appear when are therefore not ruling in this proceeding the sale of the theater was made in the fore- upon the legality or illegality of the proceclosure suit. On December 29, 1922, an ap- dure. plication was made by the receiver to sell the The court of common pleas disposed of the fixtures and equipment of the theater, the matter in favor of the plaintiffs in the acsame not being covered by the mortgage tion and against the receiver, and it does not bonds, and they were ordered sold. The appear whether or not any testimony was receivership suit realized the sum of $6,000. taken at that time, but it will be presumed, This sum was wholly insufficient to pay the inasmuch as it was a question of fact, that costs and expenses of the suit, administra- the court was either in full possession of all tion of the receivership, and the losses of necessary facts or that testimony was in fact operation, but on October 24, 1923, the court received. In any event, the court of comapproved a report of the receiver and taxed mon pleas had issued numerous orders in certain costs and ordered payment of same the case and personally knew the circumout of the proceeds of the sale of the equip- stances. No bill of exceptions being perfectment. The costs which were taxed at that ed, the Court of Appeals had no competent time did not more than consume the proceeds knowledge of the matter except as shown in the hands of the receiver. None of the by the pleadings, the journal entries, and the debts of the operation were ordered paid, receiver's report. The Court of Appeals havbut, on the contrary, the court on the same ing reversed the common pleas and rendered day overruled the application of the receiver final judgment against the plaintiffs in the to tax all debts as costs and for judgment in action, it is pertinent to inquire upon what favor of the receiver against the plaintiffs in facts disclosed by the record such a reversal the action. Thereupon the receiver prose- could have been entered. cuted error to the Court of Appeals, without A majority and a dissenting opinion were any bill of exceptions, but solely upon the rendered by the Court of Appeals, and in pleadings, the transcript of journal entries, both opinions it is indicated that there were and the report of the receiver. Upon this both malfeasance and misfeasance on the record the Court of Appeals reversed the part of the receiver, and we think enough judgment of the common pleas court and ren- appears in the record to support those indered judgment in favor of the receiver dications. We have, however, searched the against Richey and Moeller, the plaintiffs in record without avail to find anything to inthe receivership action. The amount of the dicate that the plaintiffs in the action were deficiency in operation, and therefore the in any wise responsible therefor. amount of the judgment, was $9,242.69. A tition filed by them contains the usual and motion to certify the cause to this court was necessary averments to warrant the appoint

ment of a receiver, which the court must Bulkley, Hauxhurst, Jamison & Sharp, have found to be true, and a receiver was in Frank X. Cull, and John A. Elden, all of fact appointed for the purpose of preserving Cleveland, for plaintiffs in error.

the property; but he was not at that time Harold H. Gorman, of Cleveland, for de authorized to continue the business.

Soon thereafter, upon the receiver's own applica

tion, the business was ordered continued by MARSHALL, C. J. In the Court of Ap- the court, but after the filing of the petipeals the cause was heard on error, and that tion it does not appear that the plaintiff's court reversed the judgment of the court of took any action whatever, or that they were common pleas and rendered the judgment ever consulted, concerning the continuance which the court of common pleas should or manner of conducting the business. It is have rendered, and thereupon entered final not doubted that under special circumstances judgment against the original plaintiffs. parties who invoke the processes of the court This feature of the case having been heard to have a receiver appointed, and to conin the court of common pleas upon a motion duct the business of an insolvent concern,

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may become personally liable for expenses | ble to the corpus; that a person recovering of the receiver, even including losses result- a judgment against a receiver in an indeing from unsuccessful operation. In nearly pendent suit may intervene in a foreclosure all cases in which this principle has been suit; and that he is entitled to an order of declared, facts and circumstances were priority of payment of his claim as against shown to the effect that the assets of the mortgage liens, if the current earnings or insolvent concern were exhausted, and that other assets are insufficient. If the receiver the connection of the plaintiffs in the action in the instant case had followed the procewas such as to make it inequitable not to dure which was approved in that case, the hold them responsible for a deficiency. It present controversy would not have arisen. may be further conceded that under any and The Court of Appeals in reversing the comall circumstances such expenses and losses mon pleas followed a number of authorities should be made a charge against the corpus of other states, and apparently refused to of the property in the custody of the receiv- follow the principles declared in the case

Just why the reciver did not intervene of Atlantic Trust Co. v. Chapman, 208 U. in the foreclosure suit, or why the two caus- S. 360, 28 S. Ct. 406, 52 L. Ed. 528, 13 Ann. es were not consolidated, does not appear. Cas. 1155. The opinion of Mr. Justice HarNeither does it appear that the plaintiffs in lan in that case very clearly lays down the the receivership action were responsible for principles that, where the court appointing a these steps not being taken. If the receiver receiver takes no precautions to obtain sein the first suit had intervened in the fore- curity from the parties who apply for the reclosure suit, and called the matter of his ceiver, and, where no special circumstances deficit to the attention of the court, we have are shown making it right and equitable to no doubt it would have been ordered paid hold the persons responsible who have apout of the corpus of the estate. It is in- plied for the appointment of a receiver, pertimated that the receiver so negligently con sons dealing with the receiver can look to ducted his business that he did not even the corpus of the estate alone. know of the deficiency until after the corpus The appointment of a receiver and the of the estate had been distributed in the continuance of an insolvent business rest in foreclosure suit. Nothing appears in the rec- the sound judicial discretion of the court, ord to indicate that the plaintiffs in the re- and the court may impose terms upon parties ceivership suit had any knowledge of that requesting a receivership, and, in the alternacondition. Cases are found among the au- tive, may refuse to make the order. If at thorities holding that, where the corpus is any time after appointment and during the not available, and there has been an irregular operation of the business of an insolvent conor unauthorized appointment of a receiver, cern it becomes apparent that the receiver or where a party has received benefits from will not be able to pay and discharge the the receivership in excess of the amount re- liabilities incurred by him, the operation quired to be paid, or where an action has should be discontinued, and the court should unjustly been maintained without right, in so order. all such instances the plaintiffs in the action

The rule declared by the majority of the may be held personally responsible for defi- Court of Appeals in this case would be a ciencies. Farmers' Nat. Bank of Owatonna most dangerous one. Plaintiffs who are able v. Backus, 74 Minn. 264, 77 N. W. 142; Cut- to establish a clear right to the appointment ter v. Pollock, 7 N. D. 631, 76 N. W. 235; of a receiver may not after the appointment Ephraim v. Pacific Bank, 129 Cal. 589, 62 be able to have any voice in the further adP. 177. It is not expedient to attempt to enumerate obligations should never be made their ob

ministration of the estate, and the receiver's all the circumstances which would render ligations, except under circumstances callplaintiffs responsible for the debts of a receiver. It is sufficient to say that no equita-ing for the application of well-known and ble considerations are found in this record well-settled equitable principles which make calling for the application of such a rule.

them liable. The authorities upon this point We have been referred to the case of not being in harmony, we think it is proper to Brown, Admr., v. Winterbottom, 98 Ohio St. follow the principles of the case of Atlantic 127, 120 N, E. 292, 3 A. L. R. 1465. No prin- Trust Co. v. Chapman, supra, as being, not ciples are found in that case which are not only the highest authority, but also as being well settled in numerous other jurisdictions. well reasoned. The judgment of the Court That case does enjoy the distinction of being of Appeals will therefore be reversed and the first case in the state of Ohio to reach the judgment of the court of common pleas this court calling for the application and affirmed. declaration of those principles. It is there Judgment reversed. held that damages resulting from the negligent operation of a receivership are operat JONES, MATTHIAS, ALLEN, KINKADE, ing expenses, and, in proper cases, chargea- and ROBINSON, JJ., concur.

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(148 N.E.)

5. Licenses em 33—General provisions of secSTATE ex rel. JANES v. BROWN, Secretary tion of Gasoline Tax Bill, and incorporation of State. (No. 19106.)

of other section therein, held not to modify

specific limitations or purposes for which ap(Supreme Court of Ohio. May 19, 1925.) propriations may be used.

The general provisions of section 14, of (Syllabus by the Court.)

House Bill No. 44, and the incorporation there1. Statutes Omw35/2-Gasoline Tax Bill is law in of the provisions of section 2 by reference, providing for tax levy, and, under Constitu- are not effective to modify the specific limitation, is not subject to referendum.

tions contained in section 12 upon the purposes House Bill No. 44 (111 O. L. P. 294) is a for which the appropriations in that section law providing for a tax levy and comes within made can be used. the provisions of section 1d of article II of the Constitution of Ohio, "laws providing for tax 6. Statutes Omw 194, 207–Court gives effect to levies * * shall not be subject to the ref

specific limitations of act over general pro. erendum."

visions, where such limitations and provisions

cannot be reconciled; ambiguous language of 2. Licenses 7(2)-Gasoline Tax Bill held

act not permitted to modify certain and defi.

nite provisions.
not to lay tax on property in violation of Con-
stitution requiring property to be taxed by a

In construing an act, the court will give efuniform rule, but lays tax on use of property, fect to the specific limitations therein conHouse Bill No. 44 does not lay a tax upon where the specific and general provisions can

tained over the general provisions thereof,
property, in violation of the provisions of sec-
tion 2 of article XII requiring property to be not be reconciled, and will not permit ambigu-
taxed by a uniform rule at its true value in ous language to modify certain and definite

provisions.
money, but does lay a tax upon the use of
such property for certain designated pur-
poses.

Mandamus by the State of Ohio, on the re

lation of Charles C. Janes, against Thad H. 3. Statutes 107(7)-Gasoline Tax Bill held Brown, Secretary of State. Writ denied.to appropriate funds for maintaining and [By Editorial Staff.] repairing highways and streets of state, and not invalid as containing more than one sub

The facts are stated in the opinion. ject.

J. F. Atwood and C. D. Saviers, both of House Bill No. 44 appropriates the funds Columbus, and Walter D. Meals, of Cleveto be collected thereunder to the following land, for relator. purposes and no other: To the state for a ro

C. C. Crabbe, Atty. Gen., H. H. Griswold, tary fund to be used in refunding taxes as proof Chardon, and Wilbur E. Benoy, of Columvided therein; to the state to be expended by the director of highways and public works for bus, for defendant. the purpose of maintaining, repairing and keep

Taft, Stettinius & Hollister, of Cincinnati, ing in passable condition for travel the roads amici curiæ, for the Ohio State Grange. and highways of the state now or hereafter re

Ballard, Jones & Price, of Columbus, amici quired by law to be maintained by the depart- curiæ, for the Ohio Farm Bureau Federation. ment of highways and public works; to the counties of the state to be used for the sole purpose of maintaining and repairing the coun ROBINSON, J. The petition in this case ty system of public roads and highways within recites that the relator on the 25th day of such counties, and to the municipalities of the April, 1925, filed with the respondent a writstate for the sole purpose of maintaining and ten application for the registration of a mo. repairing the public streets and roads within tor vehicle, together with a tender of the such corporations.

sum of $6, alleges that the $6 was the fee 4. Highways 9734, New, vol. 16A Key-No. and taxes required by law to aceompany the

Series "Current expenses" as used in con application; that he requested the respond. stitution includes expenses of keeping state ent to register said motor vehicle and issue property in repair, and includes maintenance to him a certificate of registration and liand repair of roads as distinguished from new cense plates; and that the respondent, conconstruction.

trary to the duty enjoined on him by law, re. The phrase "current expenses," as used fused to register the motor vehicle, and rein section id of article II of the Constitution, fused to issue the certificate and license in addition to including the expenses incident plates therefor, for the reason that the fees to the officering and maintaining of the state and taxes tendered were not the fees and government, includes the expense of keeping taxes required by law, and the petition prays in repair ånd maintaining the property of the state government, and, as applied to roads, for a writ of mandamus requiring respondincludes the maintaining and repairing thereof ent to issue the certificate and plates. as distinguished from new construction,

To this petition the respondent filed a genEd. Note.--For other definitions, see Words eral demurrer, and thus are raised many and Phrases, First and Second Series, Current questions involving House Bill No. 44, known

as the “Gasoline Tax Bill," a decision of

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all of which is necessary for the determina-, or compound such motor vehicle fuel for use, tion of this case.

distribution, or sale in Ohio, and provides Provision by statute bad theretofore exist- that, when any such person, firm, etc., imed requiring the payment of a tax upon the port such motor vehicle fuel into the state operation of motor vehicles upon the public and sell the same in tank car lots, or in its highways of the state. Sections 6292 and original containers, to any purchaser for 6295, General Code.

use, distribution, or sale and delivery, then [1] House Bill No. 44 amended those sec-(the purchaser and not the seller shall be deemtions, in general reducing the tax upon suched the dealer. motor vehicles, but for the calendar year Section 2 of the act, after stating the pur1925, by reason of the repeal of the provisions poses for which the revenue is to be raised, contained in the original sections reducing provides : the tax for the operation of motor vehicles after April 1st, it acted as an increase for the sale or use of each gallon of motor vehicle fuel

"There is hereby levied and imposed on the relator, and it is the contention of relator sold or used by any dealer, as herein defined, that, but for the other provisions of House within the state of Ohio, an ercise tax of two Bill 44, the amendment to sections 6292 and cents" 6295 of the General Code would not have been enacted by the General Assembly, and I fuel "sold in tank car lots to be used wholly

—and exempts from taxation motor vehicle that, if House Bill No. 44 be unconstitutional, the amendments to sections 6292 and 6295,

for

purposes other than propelling motor General Code, having been made because of vehicles on the public highway,” motor ve. the other provisions of House Bill No. 44,

hicle fuel exported or sold for exportation would not be separable therefrom, and would from the state of Ohio to any other state, or be for that reason also unconstitutional and to any foreign country, and motor vehicle void; that, if not unconstitutional, House fuel sold by a dealer to the United States Bill No. 44 is subject to the referendum, and

government. therefore does not go into immediate effect;

Section 6 provides that each dealer shall that original sections 6292 and 6295 of the pay to the treasurer of the state the excise General Code were therefore in full force tax due on the sale or use of motor vehicle and effect on the 25th day of April, 1925.

fuel sold or used by him in the preceding That original sections 6292 and 6295 of

calendar month. the General Code were “laws providing for

Section 9 provides that any person, firm, tax levies” was definitely decided by this association, etc., who shall use any motor court in the case of Saviers v. Smith, Sec'y vehicle fuel on which the tax has been paid of State, 101 Ohio St. 132, 128 N. E. 269. for the purpose of operating or propelling staThe only change in those sections is a re- tionary gas engines, tractors not used on duction in the amount of tax exacted. If,

highways, motor boats, or aircraft, or who then, there is any merit in the contention of shall use any such fuel upon which the tax the relator, it must be because other provi- has been paid for cleaning or dyeing, or sions of House Bill No. 44 conflict with some any other purpose than the propulsion of provision of the Constitution or are subject motor vehicles operated or intended to be to the referendum.

operated in whole or in part upon the high[2] Is the tax levied by the provisions of ways of the state, shall be reimbursed to House Bill No. 44 a tax upon property, and the extent of the amount of the tax so paid therefore in violation of section 2 of article on such motor vehicle fuel, and provides the 12 of the Constitution, requiring property to

manner of reimbursement. be taxed by a uniform rule at its true value

The act does not lay a tax of two cents in money?

per gallon upon gasoline and other volatile The act is entitled :

and inflammable liquids derived from pe

troleum as such, but only upon gasoline and "An act to provide for the adequate mainte- other volatile and inflammable liquids denance of the public highways and streets of rived from petroleum when used, distributed, the state, to supplement existing revenues available for road and street maintenance and or sold in Ohio for motor vehicle fuel in repair by the levy of an excise tax upon the motor vehicles, used or to be used in whole sale of motor vehicle fuel, and the apropriation or in part upon the highways and streets of the proceeds thereof, and to transfer to the of the state. The tax is upon the enjoyment state the duty of maintaining the entire main of the privilege of using motor vehicle fuel market road and intercounty highway systems in traveling upon the highways and streets thereof and to amend sections 6292 and 6295 of the state, and comes clearly within the of the General Code."

definition of an excise tax as defined by this

court in the case of Saviers v. Smith, supra: Section 1 of the act provides that the word "dealer" shall include persons, firms, etc., who

"An excise is a tax imposed on the performimport or cause to be imported into the state

ance of an act, the engaging in an occupation motor vehicle fuel for use, distribution, or provisions of section 10, art. 12, of the Con

or the enjoyment of a privilege, and by the sale in Ohio, and persons, firms, etc., who stitution, specific authority has been conferred produce, refine, prepare, distill, manufacture, / for the levying of such a tax,"

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