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Sherard et al. v. Lindsay.

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And Justice Miller in the opinion, says: Section 2737 of the Ohio Statutes, which prescribes the character of the statement to be made by persons holding moneys, credits, or investments, such as are described, and which are subject to taxation, declares that such statement shall truly and distinctly set forth, among other things, "moneys on hand or on deposit subject to order' and 'the amount of credits as herein before defined.' Subdivision 16 requires a statement 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 effect, within that time invested in, or converted into bonds or other securities of the United States or of this state, not taxed, to the extent he may hold or control such bonds or securities, on said day preceding the second Monday of April; and any indebtedness created in the purchase of such bonds or securities shall not be deducted from the credits under the fourteenth item of this section.

"Of the right of the state of Ohio to make this provision we have no doubt. Its purpose is not to enable that state to tax the securities of the United States, but to permit it to tax other investments, money on hand and on deposit subject to order, while it combines in the same exemption the securities of the general government and those of the state. We know of no principle which forbids that state from taking the whole period of the business year already passed as the best means of ascertaining how much the taxpayer shall be required to pay on property which is admitted to be taxable, and how much he shall deduct from the nontaxable securities of the state and of the United States.

"As this was the method under which the plaintiff in error in this case was taxed, and as he was charged with no more than he was liable to pay under a wise and equitable law, we do not see any error in the judgment of the supreme court of Ohio, and it is accordingly affirmed."

In this case the auditor finds that the cost of the bonds, or the amount invested, is $146,482.16, and he has as he says in his testimony, taken a period of time less than the average. He has taken eleven twelfths where he would have been justified in taking twelve-thirteenths and he has added 50 per cent to that and placed it on the tax duplicate of 1895.

Section 2781, Revised Statutes of Ohio provides: "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, or shall evade making a return or statement, the county auditor shall for each year ascertain as near as practicable, the true amount of personal property, money, and 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 corrections 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."

The deceased failed for the year 1894 to return upon the blank furnished him by the assessor, and omitted to make any return as required by paragraph 16. Section 2737, Revised Statutes. Whatever may be the practice as to the making or not making such return or the opinion of individuals as to the propriety, or constitutionality of the statute it

Hamilton Circuit Court.

has been settled for us not only by our own supreme court, but approved and affirmed by the supreme court of the United States.

Te so much as is placed on the duplicate as additional tax for 1894, the injunction is dissolved.

Judge Laubie was present at the hearing, but left during the term and did not participate in the consideration or decision of the case.

P. P. Lewis and J. Dunbar Attorneys for Plaintiffs.
E. E. Erskine and John M. Cook, Attorneys for Defendant.

TAXES AND TAXATION.

[Hamilton Circuit Court, March, 1897.]

Cox, Smith and Swing, JJ.

JOSEPH RAWSON & Co. v. SCHOTT, TREAsurer.

MAKING ADDITIONS TO TAX RETURNS.

In making additions to tax returns, the board of review must act with reason and upon the evidence before them.

The suit was to enjoin the collection of taxes on additions of $35,760 and $20,000 made to the plaintiffs' tax return for the year 1892, under the Rawlings Law, section 2742, R. S., by the board of review sitting as a board of equalization. The hearing below was on demurrer to the petition, which was sustained by Judge Sayler in an opinion holding the law constitutional.

SWING, J.

We are of the opinion that the injunction should be allowed. Plaintiffs by its allegations and proof bring the case under the well settled rule of equity that where the board acts from mere caprice or arbitrarily, a court of equity may grant relief. A court of equity would not interfere on a mere question of evidence, or the weight of evidence; all such matters are for the board to determine, and its action must be final as far as relief by injunction by a court of equity. But when the court acts without evidence, or arbitrarily, or from mere caprice, a court of equity can, and should, grant relief. In the case before us, the only evidence was that of Joseph Rawson, and the action of the board on the evidence was not only not in accord with the evidence, but so manifestly contrary to it that it is charitable to say that it is purely arbitrary, and such power was not intended to be exercised by the board.

Ramsey, Maxwell & Ramsey; Rendigs, Foraker & Dinsmore.

Post v. The State of Ohio.

CONTEMPT OF COURT.

[Cuyahoga Circuit Court, May 10, 1897.]

Hale, Marvin and Caldwell, JJ.

* LOUIS F. POST V. THE STATE OF OHIO.

1. INFORMATION TO BE FILED BY A PROPER REPRESENTATIVE OF THE STATE. When the transactions constituting an alleged contempt of court are not within the personal cognizance of the court through his own senses, the better practice would seem to be to require an information to be filed by a proper representative of the state, specifying the transaction alleged to be contemptuous and permit the accused to file an answer to the charge made against him in such information.

2. RIGHTS OF THE ACCUSED.

In such prosecution, whether the transaction constituting the alleged contempt is brought into the record by information filed, or first entered on the journal of the court by order of the court before the arrest of the accused or any notice to him, the fullest opportunity should be given to him to show cause why he should not be punished for contempt, and his guilt should not be determined before such opportunity is given to him.

3. EVIDENCE TO MITIGATE THE Offense.

In such action the accused is entitled to show by witnesses, that the facts referred to or recited in the article alleged to be contemptuous,occurred as therein stated. Such evidence is competent, as it tends to mitigate the offense, and is entirely. proper to be considered in fixing the measure of punishment to be awarded.

4. PROOF THAT THE ARTICLE WAS NOT IN LAW CONTEMPTUOUS.

In such cause the accused in an endeavor to show why he should not be punished for contempt, has the right to show, if he can, that the article published was not in law contemptuous, and a refusal to hear counsel on that proposition is error.

5. NEWSPAPER CRITICISMS.

Newspaper comments though libelous, having relation to proceedings of a court which are wholly past and ended, are not in contempt of court nor the authority of the court to which reference is made.

HALE, J.

The record shows that the plaintiff in error was, in the court of common pleas, adjudged guilty of a contempt of court, and sentenced to imprisonment in the county jail for ten days, to pay a fine of $200.00, and costs of the prosecution, and stand committed until the fine and costs. were paid.

In the bill of exceptions the entire proceedings occurring at the trial were brought into the record. A reversal of the judgment is sought, and several errors are assigned upon the record, and insisted upon as grounds for such reversal.

The alleged contempt of the plaintiff in error was in writing and causing to be published in The Cleveland Recorder, a newspaper of general circulation in this city, an article of which the following is a copy:

66 JUDICIAL AUTOCRACY.,

"Perhaps no class of public officials are more in need of sharp criticism for their disregard of the amenities than judges. For this many reasons might be assigned.? Judges hold a position which makes them * For decision of the court of common pleas, which this decision reversed, see 6 Circ. Dec., 200. 7 Dec 17

Cuyahoga Circuit Court.

seem and often makes them feel like autocrats. Their commands are for the time being, law. They are invested with the autocratic power, lodged in no other official, of arbitrarily ordering men into prison-of being at Power like this is calculated to impress once accusers, juries and judges. those who exercise it with exalted notions of their authority and distorted ideals of judicial dignity. The ill effect is heightened when the worries. of the court room sour the temper of the autocrat. Some judges then ignore the incidental obligations of their position. Forgetting that they are arbitrators bound to be gentle to everyone, and especially to be solicitous for the rights of all whose quarrels come before them, they play the part of the querulous pedagogue. Invested with a little brief authority, they use it as if no one's rights were superior to their whims.

"An example was furnished on Monday by Judge Lamson. For several days an attorney had danced attendance in Judge Lamson's court, waiting for one of his cases to be called for trial. Up to 3 o'clock on Monday the case had not been reached, and as only one hour more of the court day then remained, the attorney, reasonably assuming that his case would not be called before adjournment, left the court room to attend to other business. But by one of those accidents which neither lawyers nor judges can anticipate, the trial in progress suddenly ended, and the absent lawyer's case was called; whereupon Judge Lamson ordered it to proceed, without giving the attorney a chance to be heard.

"Conduct like this on the part of judges is wholly without justification. To begin with, it is inexcusable that a judge should keep lawyers and witnesses dancing attendance at court daily and all day for several days together awaiting the call of their cases: and when a lawyer, after dancing attendance, is placed in default because toward the close of a day he happens to be absent when the case on trial ahead of his comes unexpectedly to an end, the judge who orders the default deserves to be as openly criticised by the press as he is secretly criticised by the bar. "Whether intentionally or peevishly, he thereby exposes indifference to the rights which he has been appointed to adjust.

"We are aware of the complaints of judges that lawyers abuse the courtesies of the bench regarding the calling of cases. But if the bench made reasonable rules upon the subject there would be no opportunity for abuses."

No affidavit or information was filed with the clerk of the court, but by order of the court there was entered on the journal of the court the following order or judgment.

"It having been brought to the attention of the court that on the 17th of March, 1897, the said defendant, Louis F. Post, did write and cause to be published in a certain newspaper known as The Cleveland Recorder, published in and of general circulation in the city of Cleveland and county of Cuyahoga, a contemptuous article of and concerning this court, and one of the judges of this court named in the article, then engaged in holding court in said city and county, and engaged in the trial of causes therein, and which contemptuous article is in the words and figures following, to wit then follows the article, and at the close, after the recitation of the article: 'it is therefore ordered by this court that an attachment issue for the person of said defendant, returnable before this court, sitting in court room No. 4 in the courthouse of this county, returnable on the 20th day of March, A. D. 1897, at 10 o'clock P. M.'

It will be noticed that the plaintiff in error was not by this judgment or order required to appear and show cause why he should not be punished

Post v. The State of Ohio.

for a contempt of the court, but apparently was adjudged guilty of contempt.

In pursuance of this order the plaintiff in error was arrested by the sheriff, and brought before the court. A motion was interposed by the plaintiff in error to dismiss the proceedings, on the alleged ground that no affidavit or information was filed with the court or clerk of the court, charging him with any offense, or specifying the transaction for which he was about to be tried. This motion was overruled, to which an exception was noted, and this is the first error assigned upon the record.

When the transactions constituting the alleged contempt do not come within the personal cognizance of the court through his own senses, as in this case, the better practice would seem to be to require an information to be filed by a proper representative of the state, and permit the accused to file an answer to the charge made against him in such information, and that all facts not within the personal knowledge of the court, should be establishd in open court upon the sworn testimony of witnesses, or other competent evidence, in the ordinary manner of other judicial investigations.

This precise point has not been determined, so far as we are aware, by any court of this state; but substantially the uniform practice in the cases reported, has been to require an information to be filed. While we are of the opinion that no affidavit was required or necessary, we do hold that the safer and the better practice is to require an information to be filed specifying the transaction alleged to be contemptuous, unless the court has personal knowledge of such transaction.

Holt's case, 55 N. J. L., 384, is in point. The defendant in that case had been adjudged guilty of a contempt in a summary proceeding, and sentenced to fine and imprisonment. No affidavit and no information had been filed. On review, the supreme court, of that state, in discussing the matters made upon the record, say: "On this occasion we have no concern with any part of the transaction except such as relates to the course of procedure that was adopted. This was of the simplest kind possible. An attachment was issued, resting on no legal basis whatever, for there was no affidavit or other proof. The court acted ex mero motu, assuming as a part of its judicial knowledge that the abusive article existed in point of fact: that it had been published in a certain newspaper and that the defendant was responsible in some way for the existence of the libel or for its dissemination. Such a step was altogether abnormal and illegal.

"Nor did the procedure improve as it progressed. The defendant, upon being taken into custody gave bail, and in due course appeared before the court, and through his counsel moved to set aside the attachment and all proceedings founded upon it, on the ground that the same was issued without any legal evidence or proof of the fact therein recited. This motion was overruled and the court, without proof and again of its own motion, proceeded at once to judgment, laying a fine of one thousand dollars and cost on the defendant, and directing the imprisonment until the payment of such moneys. Thus, from first to last, the members of the court were the accusers, witnesses and judges; they took no testimony, but convicted the defendant from their own intuitive knowledge.

"It is not necessary to say that such a course has not in any respect whatever the least semblance of a proceeding in a court of law. The arrest and conviction were altogether arbitrary and illegal."

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