Sherard et al. v. Lindsay. it as a demurrer to the evidence, the court should have given judgment for defendant. When it clearly appears from the case made by the plaintiff that she never can recover, a judgment for the defendant will not be reversed, because the defendant, after the plaintiff had produced her evidence and rested, was wrongfully permitted to testify in his own behalf. For these reasons the judgment is affirmed. Judge BURROWs: I agree fully with the conclusion arrived at in this case, but am under the impression that there was no error committed in permitting the testimony of Mr. Ashley in these proceedings. S. Newton Pettis, Charles Lawyer, Jr., L. S. Sherman and Hoyt & Munsell, Attorneys for Plaintiff. Northway & Perry and Wade & Betts, Attorneys for Defendant. JUDGMENTS-TAXATION. [Jefferson Circuit Court, November Term, 1896.] HENRY C. SHERARD ET AL., EXECUTORS, V. BARNET N. LINDSAY 1. APPRAISEMENT OF A JUDGMENT FOR TAXATION A judgment in reference to which a proceeding in error is pending should be appraised for taxation at its true value in money at the time the owner should have listed it and not at its nominal value. 2. APPRAISEMEnt of JudgmeNT BY BOARD OF EQUALIZATION-CONCLUSIVENESS. Where the annual city board of equalization having jurisdiction affix the value of such judgment at one-half its nominal value, in the absence of fraud its action is conclusive. 3. ACTION OF COUNTY AUDITOR AFTER SUCH JUDGMENT IS AFFIRMED BY THE SUPREME COURT. The county auditor, after such judgment is affirmed by the supreme court, is not authorized, under the power conferred by sections 2781 and 2782, Revised Statutes, to add to the tax list for years the value as thus fixed the difference between such valuation and its nominal value, and to such amount so ascertained add fifty per centum, and multiply the sum thus increased by said penalty by the rate of taxation belonging to said year or years. 4. VALUE FIXED BY ANNUAL CITY BOARD OF EQUALIZATION-EFFECT. Held, Under the facts in this case the value fixed by the annual city board was its fair cash value at the time it was so fixed. 5. REFUSAL OF TAXPAYER TO MAKE A RETURN OF HIS MONEYS, CREDITs, or OTHER EFFECTS. Where a taxpayer refuses or neglects to make a return of "the monthly average amount or value, for the time he held or controlled the same, within the preceding year, of all moneys, credits, or other effects, within that time invested in or converted into bonds or other securities of the United States, or this state, not taxed, to the extent he may hold or control such bonds or security on said day preceding the second Monday of April," as required by paragraph 16, section 2737, Revised Statutes, the county auditor may, under the power conferred by sections 2781 and 2782, Revised Statutes, place the same on the tax duplicate for the year it should have been returned, with fifty per centum, penalty added thereto. Jefferson Circuit Court. APPEAL from the Court of Common Pleas of Jefferson county. FRAZIER, J. This is an action brought by the executors of Robert Sherard, Jr., to enjoin the collection of taxes placed upon the duplicate against his estate, by the county auditor, claiming to act under the power conferred by sections 2781 and 2782, Revised Statutes. The provisions, so far as necessary to examine, under which this assessment or taxation is made, is: "If any person, whose duty it is to list property, or make a return thereof for taxation, either to the assessor or county auditor, shall, in any year or years, make a false return or statement, the county auditor shall, for each year, ascertain, as near as practicable, the true amount of personal property, moneys, credits and investments that such person ought to have returned or listed for not exceeding the five years next prior to the year in which the inquiries and correction provided for in this and the next section are made; and to the amount so ascertained for each year, he shall add fifty per centum, multiply the sum or sums thus increased by said penalty by the rate of taxation belonging to said year or years, and accordingly enter the same on the tax lists in his office, giving a certificate therefor to the county treasurer, who shall collect the same as other taxes." Sherard was the owner of certain shares of the capital stock of The Pittsburg, Cincinnati & St. Louis Railway Co. These shares or stocks were part of them owned by him before, and part purchased after, April, 1890. After April, 1890, negotiations were entered into for the consolidation of such railway, with others, to be known as The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co., and resulted in such consolidation. Sherard refused to convert his stock into the stock of the consolidated company, and he and the directors of the company being unable to agree as to the value of such stock, the parties submitted the question to arbitration, which fixed the value at $60 per share of $50 each. And subsequently such proceedings were had on appeal that an issue was made as to the value of the stocks, and tried to a jury in the court of common pleas, which found the value of the stock to be $65 per share; a motion by the railway company to set aside the verdict was overruled and judgment given in favor of Sherard; a bill of exceptions taken embodying all the evidence, proceedings and rulings; a petition in error, filed in the circuit court, which in November, 1891, affirmed the judgment of the common pleas, (one judge dissenting). The case was taken on error to the supreme court, where January 16, 1894, the judgment of the circuit court was affirmed (two of the judges of that court dissenting). The Pittsburg, Cincinnati & St. Louis Ry. Co. v. Robert Sherard, Jr, 51 O. S., 568. In 1891, 1892 and 1893, Sherard in his returns to the assessor did not affix a value, but went before the city board of equalization and represented to them that he held the stocks, and stated the litigation, and asked that they affix an amount or value to them. The pertinent inquiry in this case is, whether there has been, upon the part of Sherard, any fraudulent act, either of commission or omission, such as would make him liable under sections 2781 and 2782, Revised Statutes. Has he, in either of these years, made a false return, or failed to make a return, within the meaning of the law? Sherard et al. v. Lindsay. Certain machinery is provided by statute for the taxation of property; one of these provisions is, that it is the duty of every person of full age and sound mind, shall list the property of which he is the owner. The Revised Statutes, sections 2804 and 2805, provide for annual county and city boards of equalization. Sherard was a resident of the city of Steubenville, in which there was an annual city board of equalization in each of said years, with power to hear complaints, and "each member of said board is authorized to administer oaths, and said board is empowered to call persons before them, and examine them, under oath, in regard to their own or other's property, moneys, credits, and investments, and the value thereof, and to equalize the value of real and personal property, moneys, credits, and investments within such city, and to order any property, credit, or investment to be placed on the duplicate for taxation, and fix the value thereof, according to law, which has not been listed for taxation, and to increase the value of such property, moneys, credits or investments, as in their judgment have been listed at less than their true value in money." Sherard did not state the value of the stocks, or the judgment founded on them in his annual return to the assessor, but stated therein the facts that he owned them and that on account of the litigation, he asked that the annual city board of equalization affix the value, and he did go before that board, and it did act in the premises and affixed the value in each year at twenty-five dollars for each share of fifty dollars, par value. What is the effect of such action? Was the conduct of Sherard fraudulent, or is the action of the board legal and final? This is an important and controlling question in the case now before the court, and a new one in this state, although we have some decisions which bear upon the question. In the case of Wagoner v. Loomis, 37 Ohio State, 571, the second proposition of the syllabus is: "As a general rule the decisions of officers and tribunals specially created and charged, in tax laws, with the duty of valuing property for taxation and equalizing such valuations, are final and conclusive." And on page 582 McIlvaine, Judge, in delivering the opinion of the court, says: "Our statutes have made ample provision for the correction of mistakes and errors of judgment, committed by those instrusted in the first instance, with the fixing of values upon taxable property. Even unjust and corrupt discrimination can be relieved against, in the special tribunals provided by the statute, for the equalization of values. As a general rule, the decisions of those boards must be held to be final and conclusive. To these boards, and not to the courts, must complaints, as to inequalities as to valuation be preferred. True, the attention of the auditor was called to the fact that the valuation of these bank shares was higher in proportion to their value than the valuations of other property in the county; but there is nothing in the record to lead us to believe that the annual city and county boards of equalization would not, if complaint had been made, have advanced the valuation of all other property in the county to its true value in money. The opportunity, provided by law for the correction of the inequality complained of, was omitted. We cannot correct it now. And if, for such reasons, relief can be given to the plaintiff, we can see no reason why the like relief should not be given to every taxpayer of the state, whose property has been assessed on more 'Jefferson Circuit Court. than forty per cent. of its value, even to the destruction of the revenues of the state." Upon this same point, as to the conclusiveness of the action of boards of equalization, is the case of Stanley v. Supervisors of Albany, 121 U. S., 535. The second proposition of the syllabus is: "When the statutes of a state provide a board for the correction of errors and irregularities of assessors in the assessment of property for purposes of taxation, the official action of that body is judicial in character, and its judgments are not open to attack collaterally." And on page 550, Justice Field, in delivering the opinion of the court, says: "To these boards of revision, by whatever name they may be called, the citizen must apply for relief against excessive and irregular taxation, where the assessing officers had jurisdiction to assess the property. Their action is judicial in its character. They pass judgment on the value of the property upon personal examination and evidence respecting it. Their action being judicial, their judgments in cases within their jurisdiction are not open to collateral attack. If not corrected by some of the modes pointed out by statute, they are conclusive, whatever errors may have been committed in the assessment. As said in one of the cases cited, the money collected on such assessment cannot be recovered back in an action at law, any more than money collected on an erroneous judgment of a court of competent jurisdiction before it is reversed." To the same effect is 25 American and English Encyclopædia of Law, 261. "The acts of boards of equalization and review, in passing upon assessments, are judicial in their nature, and their determination is conclusive and cannot be attacked collaterally, unless their action or determination is impeached on the ground of fraud or because of a want of jurisdiction." And in a note on the same page, "where a question of valuation for taxation has once been regularly referred to the proper board of equalization, the valuation of that tribunal is final." Texas, etc., R. Co. v. Harrison County, 54 Tex., 119. "The courts cannot substitute their judgment for that of the board." State Raiiroad Tax Cases, 92 U. S., 575. "And money collected on an assessment, which has been passed upon by a board of review, cannot be recovered back in any action at law any more than money collected on an erroneous judgment of a court of competent jurisdiction before it is reversed." Stanley v. Albany County, 121 U. S., 535, But it is claimed that the case of Gager, Treas., v. A. W. Prout et al., 48 Ohio St., 89, is in opposition to this doctrine. The fifth proposition of the syllabus is: "Proceedings had before a board of equalization cannot be pleaded as an adjudication in bar of proceedings before a county auditor for the correction of returns under the provision of sections 2781 and 2782, Revised Statutes." It is a familiar and well-recognized rule that the syllabus of the case, which, in this state, is agreed to by the members of the court concurring in the opinion and is the law of the case, must be read in the light of the circumstances and facts of each particular case. Let us then examine what was the case in which this syllabus is announced as the law applicable to that case. The third defense in the answer is: "That at the time when the returns of personal property were made for taxation for the said years above named, Mary Barney was in full life and returned her property and all of it, for taxation, and that during each of said years an annual board Sherard et al. v. Lindsay. for the equailization of real and personal property in the city of Sandusky, which is a city of the second class, equalized the value of the real and personal property, moneys, and credits within said city, and added to and deducted from the valuation of all personal property, moneys and credits returned by the assessors therein, and which were omitted by said assessors, and heard evidence for the purpose of adding other items omitted from said returns, and that in each of said years the said Mary Barney was notified to appear before said board, as was required by law; and she did appear in person or by her duly authorized agent. "And testimony was heard bearing upon her returns of personal property, and her returns of personal property were duly passed upon by said board, and the amount and value of her personal property was equalized by said board, and all questions arising upon or under the same were heard by said board, and by them fully settled and adjudicated. "Wherefore defendants say that, by reason of such adjudication, the auditor of Erie county had no jurisdiction to add, either with or without evidence, any sum whatever to her returns, or to the tax duplicate against her on her estate, and that the attempt by him to do so is an attempt to pass upon and determine precisely the same questions that were passed upon and determined by the city board of equalization of the city of Sandusky, acting within their authority and power." On page 93 is the reply to this defense. "For reply to the third defense, plaintiff admits that, for the years above named, the said Mary Barney was in full life, and also admits that, for said several years, a board of equalization of real and personal property was in session in the city of Sandusky, which is a city of the second class. Plaintiff denies each and every other allegation in said third defense." On page 111, Minshall, Judge, in delivering the opinion of the court, says: "It is also claimed that the claim that Mary Barney had omitted taxable property had been heard and passed upon by the board of equalization of the city of Sandusky, and was therefore adjudicated. The records of this board show that some small additions were made to her returns for the years 1884, 1885 and 1887, but they do not show that any of the matters now in dispute were adjudicated and determined by it. But the power possessed by that board is very different from the jurisdiction conferred on the auditor by section 2781. The board is a part of the machinery provided for the assessment and taxation of property; and false returns or statements made to it may be corrected by the auditor under sections 2781 and 2782, as well as those made to the several assessors, so that what may be done before a board of equalization cannot be pleaded as a bar to the auditor in proceedings under section 2781 to correct a false return made by a property owner.' We see what the character of the case of Gager, Treasurer, v. Prout, was, upon which this rule was announced. Hence, it becomes an important inquiry what is a false return within the meaning of section 2781, upon which the auditor may act, notwithstanding there is an annual city board of equalization having authority to and which did act upon the question. It is a familiar rule that any proceeding, may be vitiated for fraud, and that where a party is guilty of fraud, he or those who claim under him, may not reap its benefits. Upon the question as to what is a false return we have been referred to the case of Ratterman, Treas., v. Ingalls, 48 Ohio St., 468. The first proposition of the syllabus is: "In order to render a return made by a |