Stanley v. Cincinnati.

court, therefore, is not to be presumed as expressing an opinion upon that question.

Nor can any sound reason be suggested for the adoption of a policy which would exempt land from assessments for sewer purposes when it was already provided with local drainage if it abutted upon a street in which a main sewer was constructed, but made it assessable if it abutted upon a street in which a branch or lateral sewer was constructed.

By Sec. 2381 Rev. Stat. the same three methods of assessment which must be followed in constructing main sewers must also be followed in constructing branch sewers, viz.: (1) By the front foot; (2) According to valuation on the tax list; (3) In proportion to benefits. In Sec. 2395 Rev. Stat. it is declared that council shall assess and collect the cost of such construction upon the lots and lands in such sub-main, or lateral, or branch sewer district, in all respects as directed in this subdivision for the assessment and collection of the cost of constructing main sewers; and by Sec. 2382 Rev. Stat. if the assessment is upon the front foot basis, the cost to be assessed per front foot when the work includes both main and lateral sewers, is the same in each case.

Doubtless other sections of the statutes might be cited showing similarity in method of levying assessments for both main and lateral sewers, but the two sections just cited would seem to be sufficient.

As the method of assessment is the same, I see no reason to doubt that so important a provision as that a lot having local drainage shall be exempt from assessment applies to both cases.

REAL PROPERTY TAXATION.

[Superior Court of Cincinnati, Special Term, 1903.]

KETURAH M. WILLIAMSON ET AL. V. EUGENE L. LEWIS, AUDITOR.

1. ADJOINING PROPERTY CONSISTING OF LEASEHOLD AND ABSOLUTE Estates, SUSCEPTIBLE of DivisioN MAY BE APPRAISED JOINTLY.

Where the owner of a fee and of an adjoining perpetual leasehold covers both lots with one building, susceptible of division into two buildings at the line dividing the two tracts, it is proper to appraise the tracts with the building thereon as one piece of property.

2. COUNTY AUDITOR'S TRansfer of Part of Tract Does Not Work ForFEITURE OF TAXES.

The transfer of a part of a tract by the county auditor, in conformity with the provisions of Sec. 1025 Rev. Stat., does not work a forfeiture against the state of any of the taxes standing charged upon the duplicate at that time against the prope ty as a whole. The purpose of the statute, in providing that the valuation of the part so transferred and of the part remaining shall be stated, is to fix the proportion of the taxes so charged which each portion of the tract shall bear.

24 13 Dec.

Superior Court of Cincinnati.

3. TAXES LIE AGAINST THE FEE WHEn LeaseholD INSUFFICIENT TO PAY THEM.

Upon the sale of a leasehold for a um insufficient to pay the taxes charged upon it, the balance remaining unpaid becomes a charge against the fee uuder Sec. 2897 Rev. Stat.

Robert B. Bowler, for plaintiff.

Oliver B. Jones, for defendant.

SMITH, J.

The questions argued before me in this and two other cases are presented by demurrers to the petition.

The main question in the cases has been decided by Judge Pfleger, of the common pleas court, in an action, however, in which the plaintiffs were not parties; and the same question for that reason is now presented to me for decision.

The following statement of facts taken from the opinion in the common pleas court is admitted by the parties to be correct, and is alleged substantially in the petition in this case:

"Daniel DeCamp was the owner of a lot in fee simple on the west side of Main street south of Third, and acquired by a perpetual lease from George H. Williamson, the owner of the lot immediately adjoining said DeCamp's lot on the north, a leasehold interest in said Williamson's lot, the lease providing that the lessee should pay all taxes and assessments. Being thus in control and in the occupancy of these two lots, DeCamp erected a six-story brick store over the entire two lots, without reference to the lot lines, which was capable of being divided into two buildings with reference to said dividing line, but had been used as an entirety. The property thus situated was assessed by the decennial assessor as a whole, and the entire appraisement of the two lots and buildings was carried out in one gross sum as the tax value of the entire property, upon which the annual levies were calculated.

"Daniel DeCamp having died, the property as an entirety descended to his heirs as tenants in common in undivided one-sixth interests, and they continued for a time to perform the obligations of the lease, but thereafter defaulted in the payment of the taxes for a number of years, such taxes amounting to $2,256.44 These two lots, with the building thereon, were placed upon the forfeiture list, the same never having been sold for taxes for want of bidders.

"Freeman, the plaintiff, became the purchaser of an undivided onesixth interest in the property, and paid his one-sixth part of the entire tax annually. Morrison R. Waite was appointed receiver in another action pending in this court, representing creditors of the DeCamp heirs, and by attachment proceeding brought prior to this partition case, and by judgment in another action brought after the beginning of this suit, obtained a lien upon the undivided five-sixths of the property belonging to the DeCamp heirs. After several unsuccessful efforts to sell the prop

Williamson v. Lewis.

erty by a partition sale herein as an entirety, the two lots were appraised separately, and the leasehold estate was sold for sixty-seven cents, and the other lot sold in fee for $8,000. Both sales were confirmed."

It was attempted in that case to compel the payment of all taxes charged against both properties, to be paid out of the proceeds of the lot sold in fee, but the common pleas court ordered a division of the tax charges proportioned to the value of the entire estates in said two lots and the taxes charged upon the south lot were alone paid out of the proceeds of its sale, and the taxes charged against the north lot remained unpaid upon the tax list of forfeited property, the same being divided in undivided shares and charged in four different names upon the tax list, the taxes on one part standing now in the name of Charles H. Wiltsee being paid, while those charged on the other three parts constitute the three charges complained of in these three several suits.

The law requires that property shall be taxed in the name of the owner. The south tract owned in fee by DeCamp was therefore properly taxed in his name.

In Cincinnati College v. Yeatman, 30 Ohio St. 276, it was held that permanent leasehold estates in which the lessee covenants to pay the taxes shall be taxed in the name of the lessee. The north tract, therefore, was also properly taxed in the name of DeCamp.

As DeCamp used both tracts as one piece, and built thereon a building used as one building, although susceptible of division into two buildings at the line dividing the two tracts, it was proper to appraise the tracts with the building thereon as one piece of property. Boston Water Co. v. Boston, 50 Mass. (9 Metc.) 199; Weaver v. Grant, 39 Ia. 294; Bellows Falls Canal Co. v. Rockingham, 37 Vt. 622; 22 Am. & Eng. Enc. of Law 222 and notes; Mix v. People, 4 N. E. Rep. 783 [116 III. 265], syllabus 3.

Many selections of the tax laws have been cited by counsel upon both sides as bearing upon the questions at bar, which, in my opinion, have no such bearing. They relate to the power of the auditor to correct mistakes in the duplicate or to place upon the duplicate omitted property. In this case the property was not omitted from the duplicate, nor, as I have previously stated, was there any mistake in the manner in which it was charged upon the duplicate.

The subsequent action of the auditor, after two tracts had been sold separately by order of court and the sale confirmed (leaving out of view the question of penalties), was justified by Sec. 1025 Rev. Stat., which is as follows:

"The auditor shall, on application and presentation of title, with such affidavits as are required by law, or the proper order of a court, transfer any land or town lot, or part thereof, charged with taxes on the tax list, from the name in which it stands, into the name of the owner, when rendered necessary by any conveyance, partition, devise, descent,

Superior Court of Cincinnati.

or otherwise; and if, by reason of the conveyance or otherwise, a part only of any tract or lot, as charged on the tax list, is to be transferred, the party or parties desiring the transfer, shall make satisfactory proof of the value of such part as compared with the valuation of the whole, as charged on the tax list, before the transfer is made; and the auditor shall indorse on the deed, or other evidences of title presented to him, that the proper transfer of the real estate thereof described has been made in his office, or that the same is not entered for taxation, and sign his name thereto."

The argument of plaintiffs with respect to this section is that it applies only to future taxes and does not apply to taxes charged against the property at the time of the transfer.

I think such a construction too narrow and in direct conflict with the express language of the statute which speaks of the property as "charged with taxes" at the time the transfer is made. Surely the statute does not intend that the transfer of a part of a tract charged with taxes shall work a forfeiture against the state of any of the taxes so charged; and it is equally certain, I think, that the intention is by having the part of the tract valued which is sold and the part of the tract remaining valued to fix the proportion of the taxes so charged which each portion of the tract shall bear. The action of the auditor, in obedience to the order of the court, was in conformity with the requirements of this section and was therefore lawful.

As only sixty-seven cents was realized from the sale of the leasehold of the north tract, the fee of which is owned by the plaintiffs, only that amount was available for the payment of the taxes on that tract. The taxes remaining were chargeable against the fee, since taxes are levied on the corpus of property and not upon the title by which they may be held (St. Bernard v. Kemper, 60 Ohio St. 244 [54 N. E. Rep. 267]); and since Sec. 2897 Rev. Stat., provides that:

Where lands or lots, liable to taxation, are held upon permanent lease, and with the improvements thereon, are taxed in the name of the lessee, if the same are suffered to become delinquent and are brought to sale by the county auditor, for the non-payment of the tax, interest and penalty due therein, such sale shall be confined to the right of the lessee in the premises and the improvements thereon, if the same shall be sufficient to meet the tax, interest and penalty so assessed and due."

It may be, in view of the decision in Matthews v. Lewis, 9 Circ. Dec. 873 (18 R. 134), that the penalties have been improperly imposed. The allegations of the petition are very general, and I think good as against a demurrer. I think they are sufficient to require the auditor to set up by answer such facts as show that the penalties have been lawtully im posed.

Demurrer overruled.

State v. Strawboard Co.

NUISANCES-CONSTITUTIONAL LAW.

[Sandusky Common Pleas, 1902.]

STATE OF OHIO V. AMERICAN STRAWBOARD CO.

1. POLLUTING STREAM MAY BE PROSECUTED IN ANY COUNTY THROUGH WHICH THE STREAM PASSES.

A person or corporation may be indicted for polluting the water of a stream, under Secs. 6920 and 6921 Rev. Stat., not only in the county in which the refuse or other unwholesome substance is introduced into the stream, but in any county into which the stream passes, whose inhabitants are injured thereby.

2. Section 6920 Rev. Stat.—Jeopardy and Venue.

Under Sec. 6920 Rev. Stat., prescribing that prosecutions for corrupting and polluting streams of water, etc., may be brought in any county whose inhabitants are injured or aggrieved by the nuisance, the courts of such counties have concurrent jurisdiction, the trial in one of which would be conclusive in all others for the same offense. Therefore, Sec. 6920 Rev. Stat. is not in conflict with Sec. 7263 Rev. Stat. providing that criminal cases shall be tried in the county in which the offense was committed, nor in violation of Sec. 10 of the bill of rights, forbidding jeopardy twice for the same offense.

3. SECTION 6920 REV. STAT. CONSTITTIONAL.

Section 6920 Rev. Stat., which provides that certain nuisances shall be construed to have been committed in any county whose inhabitant are or have been injured or aggrieved thereby, is a law of a general nature, having a uniform operation throughout the state.

ON MOTION to quash indictment.

George E. Seney, for defendant.

George Withey and H. C. DeRan, for the state.

BUCKLAND, J.

The indictment was returned by the grand jury of this county, and finds in substance:

That the American Strawboard Company, a corporation duly organized and doing business in the state of Ohio, late of Sandusky county, on the twenty-fourth day of February, 1902, in said county of Sandusky and state of Ohio, and from the said day to the day of the finding of this indictment, knowingly and unlawfully, did corrupt a certain stream of water, which said stream of water was then and during all the time aforesaid, running and being in the counties of Seneca and Sandusky, and running and being in the said county of Sandusky and state of Ohio, and commonly called the Sandusky river, by allowing a great amount of refuse water, containing certain deleterious ingredients, to-wit, large quantities of lime, fine particles of boiled straw and a certain acid from a certain strawboard mill, owned and operated by the said, The American Strawboard Company, the same being situated upon lot number five hundred (500) in the Riverside addition to the city of Tiffin and Seneca county, state of Ohio, and upon the right bank of the aforesaid stream of water, called the Sandusky river, to flow and empty into the Sandusky river by reason of which the water of said Sandusky river is rendered