April 17, 1918. Was on duty at Mayo clinic for six weeks, and from there to Fort Des Moines as the anaesthetist for the surgical service. July 23rd was ordered to U. S. Army General Hospital No. 1, in New York City, for duty. On September 3rd sailed with anaesthetic unit No. 1, on the City of Marselles, and arrived at G. H. I. Chaumont on Sept. 22. On Oc3rd attached to operating team No. 581, was on duty at A. R. C. Evacuation Hospital No. 110 and remained there through the Argonne Drive. Nov. 23rd team ordered to G. H. I. and on Dec. 6th was on duty with Base 80 at Beaunne, giving anaesthetics and assigned to laboratory. In February was ordered to 3rd Army Laboratory at Coblenz, Germany, for duty Was released from duty on April 1st and arrived home May 29th. Contract was annulled June 2, 1919. My contract is at present at Washington, and if necessary I can have it sent to you. I will enclose some of my old orders that I have which may help verify my report." Section 486-10 G. C., under the provisions of which your inquiry arises, and pertinent to consider herein, provides: 'All applicants for positions and places in the classified service shall be subject to examination which shall be public, competitive and free for all, within certain limitations, to be determined by the commission, as to citizenship, residence, age, sex, experience, health, habits and moral character; provided, however, that any soldier, sailor, marine or Red Cross nurse who has served in the army or navy or hospital service of the United States in the war of the Rebellion, the war with Spain, or the war with the Central Powers of Europe who has been honorably discharged therefrom and is a resident of Ohio, may file with the civil service commission a certificate of service and honorable discharge, whereupon his name shall be placed upon an eligible list by the commission, from which eligible list he may be appointed to any position in the civil service of the state which such appointing powers may deam him qualified to fill. It is at once apparent that the only issue presented, in view of the statement of facts and the section above quoted, is whether or not a contract surgeon, having performed active service in the United States Army, may be regarded as a "soldier" within the meaning of said section. "Soldier" has been defined as follows: "A person engaged in military service." See Webster's Dictionary. Also see definition in Cyc. under this title. However, before this question can be properly determined, consideration must be given to the provisions of the federal statutes authorizing the appointment of contract surgeons and estab lishing their status. The following sections of the U. S. Compiled Statutes are pertinent to consider in this connection: "Section 1806. The Medical Department shall consist of one Surgeon General, with the rank of major general during the active service of the present incumbent of that office, and thereafter with the rank of brigadier general, who shall be chief of said department, a Medical Corps, a Medical Reserve Corps within the limit of time fixed by this Act, a Dental Corps, a Veterinary Corps, an enlisted force, the Nurse corps and contract surgeons as now authorized by law, the commissioned officers of which shall be citizens of the United States. (June 3, 1916, c. 134, Sec. 10, 39 Stat. 171.)" "Section 1812. In emergencies the Surgeon-General of the Army, with the approval of the Secretary of War, may appoint as many contract surgeons as may be necessary, at a compensation not to exceed one hundred and fifty dollars per month. (Feb. 2, 1901, c. 192, Sec. 18,31 Stat. 752.)" "Section 1813. When a contract surgeon is in charge of a hospital he shall have the same authority as a commissioned medical officer. (April 23, 1904, c. 1485, 33 Stat. 266.)" In connection with the foregoing it has been noted that under the pension act of 1873, contract surgeons were authorized to be pensioned by the United States government when disabled in the line of duty. See Sections 8933 and 8934, U. S. Compiled Statutes for 1918. In view of the foregoing, the conclusion is that one who is properly appointed as a contract surgeon in the medical department of the United States Army and has rendered actual service as such, is a person engaged in the military service of the United States and comes within the legal definition of a United States soldier. It therefore must follow that a contract surgeon, a resident of Ohio, duly employed and performing the services disclosed in the statement of facts considered, has such a status as to be entitled to have her name placed upon an eligible list without examination, under the provisions of Section 486-10 G. C., when she has filed Iwith said commission "a certificate of service and honorable discharge" as required in said section. The filing of such certificate is a condition precedent to the action to be taken by the commission in placing said name upon the eligible list. A Share of Stock in a National Bank Held by a Non Resident of the State at the Time of His Decease is Property the Succession to Which is Taxable Under the Inheritance Tax Law of the State. A National Bank is Liable to the Same Extent and Under the Same Circumstances That a Corporation Organized Under the Laws of Ohio Would be for Failing to Comply With Section 5348-2, General Code. No. 1948-(Opinion Dated March 26, 1921.) Tax Commission of Ohio, Columbus, Ohio. Gentlemen: Acknowledgment is made of the receipt of the Commission's letter of recent date requesting the opinion of this department, as follows: "A des a resident of California but owning stock in a national bank in Ohio. The certificate for this stock was at the residence of A. Is such certificate subject to inheritance tax in this state? If the issuing bank should transfer such certificate without the consent of this commission to what extent, if any, is it liable for any Ohio Inheritance tax that might be assessed thereon." So far as the first question is concerned, the authorities in states imposing taxes on the succession to shares of stock in domestic corporations owned by non-resident decedents are uniform in support of an affirmative answer. Greves v. Shaw, 175 Mass. 205; In re Cushing's Estate, 82 N. Y. Supp. 795. The reasons given for the conclusion have not always been the same. In Greves v. Shaw, though the comment on this point in the opinion is very brief, the decision would seem to be based upon the analogy to the property taxation of the shares of national banks, which under Section 5219 of the Revised Statutes of the United States is required to be at the place where the bank is located. In Cushings' Estate, the court also refers to the Federal Statute, constituting national banking associations citizens of the state in which they are respectively located, and on it bases an argument to the effect that such associations should be treated as domestic corporations of the states in which they do business. The Ohio statute, Section 5348-14, sub-paragraph 1, seems broad enough to include this concept, when it refers to "shares of stock in a corporation organized or existing under the laws of this state." A third view is suggested by the citation, in the cases prev iously referred to, of cases like Matter of Bronson's Estate, 150 N. Y., 1, in which the line of reasoning is to the effect that a share of stock represents and the interest which the shareholder has in the capital and net earnings of the corporation. Being thus regarded fundamentally as a muniment of title, it represents an interest in something located in the state. At all events, the precedent seems firmly established, and this department entertains no doubt that under the broad language of Section 5331, sub-paragraph 3, General Code, the share (as distinguished from the "certificate," as the Commission puts it) is property the succession to which is taxable under the inheritance tax law of Ohio. As to your second question, the letter of Section 5348-2, General Code, certainly applies to the case, when it provides that "No corporation organized or existing under the laws of this state, shall transfer on its books or issue a new certificate for any share or shares of its capital stock belonging to or standing in the name of a decedent * * * without the written consent of the tax commission of Ohio.”, and goes on to prescribe the consequences thereof, which may be liability for the amount of taxes and interest due under the chapter on a succession to the shares. It is believed that national banking associations are subject to this provision. That it is competent for the state to require of national banking associations services of this character, in connection with the collection of its public revenue, seems to be settled by Bank v. Commonwealth of Kentucky, 9 Wall, 353; Merchants etc. Bank v. Pennsylvania, 167 U. S. 461. Your second question is accordingly answered by the statement that the national bank in question is liable to the same extent and under the same circumstances that a corporation organized under the laws of Ohio would be for failing to comply with Section 5348-2 of the General Code. County Commissioners are Without Authority to Expend Public Funds in Order to Construct a Switch. No. 1940-(Opinion Dated March 24, 1921.) Hon. Lawrence H. Webber, Prosecuting Attorney, Elyria, Ohio. Dear Sir: You have recently requested the opinion of this department upon three questions submitted to you by your county commissioners which you state as follows: "First: Have the county commissioners authority to purchase a small tract of land abutting upon the B. & O. railroad right-of-way upon which to erect a building to house the road machinery belonging to the county, as well as a place to dump materials and supplies which are delivered by the railroad company? Second: Have the commissioners authority to erect a building for this purpose? Third: Have the commissioners a right to construct a switch from the right-of-way of the B. & O. Railroad Company onto this land if same be legally purchased?" Your first two questions have in effect been answered in the affirmative by this department in an opinion (No. 1600) dated September 30, 1920, and directed to Hon. C. A. Weldon, Prosecuting Attorney, Circleville, Ohio, a copy of which is enclosed. The statement submitted by Mr. Weldon showed that it was not contemplated in that case that a tract of land be purchased and a building afterward erected thereon, but that the land and building be purchased as a unit; whereas, in the statement of facts which you submit, the plan in mind is to purchase the tract and thereafter erect a building. However, there is no difference in principle between the two cases, so that in the opinion of this department your commissioners have authority to purchase the tract and proceed thereafter to erect a building. It should be noted that in the opinion to Mr. Weldon it was suggested that before the general county fund was reported to for making the purchase, use should be made of unappropriated moneys, if any, in the public building fund. It was also pointed out that the authority of the commissioners is subject to certain restrictions upon expenditures, such as are imposed by Section 5660 et seq., 5638 and 2444 G. C. In your case, of course, there would be another set of statutes in point when the commissioners came to erecting the building, namely, Sections 2333, et seq. G. C. The foregoing remarks dispose of your first two questions, leaving your third question for consideration. |