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Action by George P. Butler against Richard H. Wright. From an order of the Appellate Division (93 N. Y. Supp. 113), reversing a judgment for plaintiff entered on the report of a referee, and granting a new trial, plaintiff appeals. Reversed, and judgment entered on the report of the referee. Affirmed.

Charles F. Mathewson, for appellant. Delos McCurdy, for respondent.

HAIGHT, J. This action was brought to compel the specific performance of a contract for the purchase and sale of stock. The contract upon which the action is based was to the effect that the plaintiff agreed to procure and turn over to the defendant all of the capital stock of the Economy Packing Company, a New Jersey corporation, and that the defendant agreed to pay therefor by delivering to the plaintiff 500 shares of the capital stock of the Wright's Automatic Tobacco Packing Machine Company, a West Virginia corporation.

The chief question of fact litigated upon the trial was the alleged false and fraudulent representations made by the plaintiff to the defendant, by which he was induced to enter into the contract. But this issue was found by the referee in favor of the plaintiff, thus disposing of that branch of the case so far as this court is concerned. The complaint further alleged, in substance, and the referee has found as facts, that the stock of the Wright Company had never been listed on any exchange, or had any quoted value or any definite market price, or any certain value capable of exact ascertainment; that the defendant was the owner of at least 92 per cent. of the stock, and controlled the balance. Upon these facts the referee found that the plaintiff had no adequate remedy at law, and therefore ordered specific performance of the contract. To these conclusions, appropriate exceptions were taken by the defendant. The Appellate Division has reversed the judgment entered upon the report of the referee and ordered a new trial. The order of reversal does not specify the ground; and, therefore, under section 1338 of the Code of Civil Procedure, we are required to presume that the judgment was not reversed or the new trial granted upon a question of fact.

It will be observed that the agreement which the plaintiff seeks to have specifically performed was in its character executory, and that, upon its breach, the plaintiff had the right to resort to such remedy as the law afforded, and the question now arises as to whether a court of equity should entertain jurisdiction and compel specific performance, or whether he should be remitted to a court at law to recover the damages which he has sustained. The rule is that, as to contracts pertaining to personal property, a party should be confined to his action for damages, unless it appears that he is

entitled to the thing contracted for in specie, which to him has some special value, and which he cannot readily obtain in the market, or in cases where it is apparent that compensation in damages would not furnish a complete and adequate remedy. But in each case the question as to whether a court of equity will take jurisdiction and grant the relief asked for rests in the sound discretion of the court, and it cannot be demanded as a matter of right. Johnson v. Brooks, 93 N. Y. 337; Matter of Petition of Argus Co., 138 N. Y. 557, 572, 34 N. E. 388; Williams v. Montgomery, 148 N. Y. 519, 43 N. E. 57; Bomeisler v. Forster, 154 N. Y. 229, 48 N. E. 534, 39 L. R. A. 240; Lighthouse v. Third Nat. Bank, 162 N. Y. 336, 56 N. E. 738. The question, therefore, that was presented to the Appellate Division for its determination was one calling for the exercise of its sound discretion, and this discretion was to be exercised upon a consideration of the facts and circumstances disclosed by the record in the case. That court, as we have seen, has reversed the judgment. While it cannot be said, as matter of law, that there was no evidence to sustain the findings of fact by the referee, it was authorized to reverse, in its discretion, upon a consideration of the facts, but it was not bound or authorized to do so as a question of law. The difficulty is that the court, in its order of reversal, has failed to state that the reversal is based upon the facts or in the exercise of its discretion. Under the provisions of the Code alluded to, we are compelled to assume that it was reversed upon the law only. This cannot be sustained, and it follows that the order of the Appellate Division must be reversed, and judgment entered upon the report of the referee affirmed, with costs in all the courts.

CULLEN, C. J., and VANN, WILLARD BARTLETT, and HISCOCK, JJ., concur. WERNER, J., dissents. GRAY, J. absent. Order reversed, etc.

(75 Oh. St. 182)

TAFEL v. LEWIS, Auditor, et al. (Supreme Court of Ohio. Oct. 30, 1906.) TAXATION - PROPERTY SUBJECT HANDS OF EXECUTORS.

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BONDS IN

Bonds coming in this state into the possession of a resident executor who derives his authority under the will by appointment of the probate court of the county of his residence, are taxable in this state, notwithstanding that the will was executed and probated in a foreign country and the testator was at the time of his decease a nonresident of this state, and all beneficiaries are likewise nonresidents.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, § 199.] (Syllabus by the Court.)

Error to the Superior Court of Cincinnati.

Action by one Tafel, executor, against Lewis, auditor, and Roth, treasurer, of Hamilton

county. Judgment for defendants and plaintiff brings error. Affirmed.

The plaintiff in error, as executor of one Reuter, deceased, commenced action in the superior court of Cincinnati against Lewis, auditor of Hamilton county, and Roth, treasurer, seeking to perpetually enjoin those officers from enforcing taxation of certain bonds held by him as such executor. It was averred that the plaintiff was appointed and qualified as executor of the last will and testament of said Reuter by the probate court of Hamilton county, the said will being executed and probated in Cassel, Germany, and duly admitted to record by the said probate court of Hamilton county; that Reuter at the time of the probate was and for many years had been a resident of Cassel, Germany; that all the beneficiaries under the will are nonresidents; that at the time of his death Reuter was the owner of certain bonds deposited in a deposit company in the city of Cincinnati which came into the possession of the plaintiff in the course of the administration of the affairs of his trust. The ward assessor, against the protest of plaintiff, returned the bonds to the value of $6,210 for taxation, and the defendants threaten and are about to place the said assessment upon the county tax duplicate, and collect the tax upon the same. A demurrer to the petition was sustained by the superior court at special term and judgment for defendants rendered, which judgment was affirmed by that court at general term. To reverse those judgments the executor brings this error proceeding in this court.

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SPEAR, J. (after stating the facts). The record presents the question whether or not bonds coming in this state into the possession of a resident executor who derives his authority under the will by appointment of the probate court of the county of his residence, are taxable in this state, notwithstanding that the will was executed and also probated in a foreign country, and the testator was at the time of his decease a nonresident of this state, and all beneficiaries are likewise nonresidents.

It is not necessary to follow the able arguments of the learned counsel by a discussion of the principles upon which the power of taxation rests under our system of government, nor attempt to notice the many limitations which have been declared to exist upon the legislative exercise of that power. It will suffice to direct inquiry respecting the proper answer to the specific question above stated, and, as it seems to us, the tenor of that answer cannot admit of serious doubt. The mandate of section 2, article 12, of our Constitution is the warrant for taxation of property in this state. That is: "Laws

shall be passed taxing, by a uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise; and also all real and personal property, according to its true value in money." Conformably with this requirement the General Assembly, by sections 2730 to 2736, inclusive, of the Revised Statutes of 1906, has made provision that property, including bonds, "held by persons residing in this state whether for themselves or others," shall be subject to taxation; that every person of full age and sound mind shall list the personal property of which he is owner, and moneys invested, loaned or otherwise controlled by him on account of any person or persons; that the property of every estate of a deceased person shall be listed by the executor or administrator; that property so held shall be listed in the same township, city or village in which such person is required to list his own property; that every person required to list property shall, annually, make out and deliver to the assessor a statement of all personal property, including bonds in his possession or under his control, on the day preceding the second Monday of April of that year, either as owner or holder thereof, or as executor or administrator. Thus property to be taxed, the person who is to list it, the place where it is to be listed, and the time when to be listed, are all distinctly and definitely provided for. It results from this that it is the duty of the holder to list where he is (1) the owner, (2) where he holds for others, and (3) where he holds as executor.

Taking these several provisions together can there be any doubt that the legislative intent is to include bonds held by an executor? We think not. Not only are they held, speaking in general terms, "for others," that is, in the interest of others, but they are under the dominion, the control, of the executors, subject only to the orders of the probate court. The general rule is, that where such property is held here in the possession and under the control of the one so having the possession, it is taxable here, although where held here subject to the control of a nonresident owner it may not be. It is conceded that in general the situs of a debt is at the residence of the creditor, although this rule is subject to exceptions (Hubbard, Treasurer, v. Brush, 61 Ohio St., 252, 55 N. E. 829). But in the present case the legal title is in the executor, and in this sense he is the owner. And, if this view be correct, then the estate was annexed to his person, and thereby had an actual situs in this state. It may be that these provisions were not necessary to fix the liability to so list on the executor, because of the specific provision applying in terms to executors, but they serve to show the scope and intent of the statute, and leave its real meaning relieved of rational doubt.

It is insisted that these bonds are liable to taxation in Germany, and that to tax them here would result in double taxation. The

proposition is not tenable. The power of taxation conferred by our constitution cannot be made to depend upon the operation of laws of a foreign jurisdiction.

It is further urged that these bonds should not be taxed in Ohio because the property right in them passed to the testator's heirs instantly at his death, and that, as they reside outside the state, their property is not subject to our tax laws. No fact in support of the assumption that the property in the bonds passed at once to any beneficiary or beneficiaries under the will appears by the petition. It is not shown or claimed that these specific bonds were bequeathed to anybody. Hence the title vested in the executor and the question attempted to be made by this proposition is not fairly in the case. We have not overlooked the cases of Grant v. Jones, 39 Ohio St., 506, or McNeill, Assignee, v. Hagerty, Auditor, 51 Ohio St., 255, 37 N. E. 526, 23 L. R. A. 628. Neither case controls, or materially affects, the case at bar.

As conclusion, we are of opinion that, notwithstanding the fact that the will was executed in a foreign country, and that at his decease the testator was a resident of that country, and that the beneficiaries under the will are all nonresidents of the state, the bonds were properly taxable in Hamilton county, and it was the duty of the executor to return them for taxation because the statute, in plain terms, so directs.

Judgment affirmed.

SHAUCK, C. J., and PRICE, CREW, SUMMERS and DAVIS, JJ., concur.

(75 Oh. St. 138)

STATE v. VERES.

(Supreme Court of Ohio. Oct. 16, 1906.) PARENT AND CHILD-FAILURE TO SUPPORTCRIMINAL PROSECUTION-PLEA IN ABATE

MENT.

The pendency of a bastardy proceeding instituted against the father of an illegitimate child is neither a bar to nor ground for the abatement of a criminal prosecution subsequently commenced against him by the state under section 3140-2, Rev. St. 1906.

(Syllabus by the Court.)

Exceptions from Court of Common Pleas, Lucas County.

Emrich Veres was indicted for failure to support his minor child. From an order sustaining a plea in abatement, the commonwealth excepts. Exceptions sustained.

At the April term, 1905, of the court of common pleas of Lucas county, Ohio, the defendant, Emrich Veres, was, under favor of section 3140-2, Revised Statutes of 1906, indicted by the grand jury of said county for neglecting and refusing to support his minor child. Said child was referred to and designated in said indictment by the name of Albert Radoczi, alias Albert Veres. this indictment the defendant filed the following motion: "The said Emrich Veres

To

moves the court to quash the indictment herein against said defendant, by reason of a certain defect apparent upon the face of the record, in this, to wit: It is apparent from the record herein that the minor child herein referred to was not born in lawful wedlock." This motion to quash was overruled by the court, whereupon the defendant filed the following plea in abatement: "The said Emrich Veres says that the said state of Ohio ought not further to prosecute the said indictment against him, because he says that on July 21, 1904, he, the said defendant herein, was arrested upon a paternity charge preferred by one Julia Radoczi, an unmarried woman, and taken before the city and justice court of the city of Toledo, Port Lawrence township, Lucas county, Ohio, where a hearing on said charge was had, and that on or about July 21, 1904, he, the said defendant herein, was held by said court to the court of common pleas of Lucas county, Ohio, to answer to said charge. That defendant herein, consistent with the order of said city and justice court, gave bond for his appearance in the common pleas court of Lucas county, Ohio, to answer to said paternity charge, and that pending the hearing of said charge in said common pleas court the defendant herein was, on or about February 20, 1905, arrested and taken before one C. H. Barks, a justice of the peace in and for Adams township in said Lucas county, Ohio, charged with neglect of minor child under the age of sixteen years, the said minor child being the same for which on a paternity charge the defendant herein had, as heretofore set forth, given good and proper bond to appear and defend against in said court of common pleas of Lucas county, Ohio. That said Justice Barks, on or about February 23, 1905, held the defendant herein in bond in the sum of $1,000, to the grand jury of Lucas county, Ohio. to answer to the charge of neglect of said minor child. That afterwards, to wit, on or about April 12, 1905, the grand jury of Lucas county, Ohio, returned an indictment against said defendant herein, and said defendant was duly arrested by virtue of said indictment for neglecting his minor child, said minor child being the same heretofore referred to in the paternity charge, as heretofore set forth. Defendant herein says that he is not the father of the child, Albert Radoczi, of whom one Julia Radoczi is the mother; that he, the said defendant herein, has always denied any responsibility for said child, and defendant has been willing and anxious to have said paternity proceeding against him so, as heretofore set forth, brought against him in the court of common pleas of Lucas county, Ohio, tried and determined. And this he, the said Emrich Veres, is ready to verify. Wherefore he prays judgment, and that by the court he may be dismissed and discharged from the said premises in the said indictment speci

fied." This plea in abatement, having been submitted to the court on an agreed statement of facts, was adjudged in favor of the defendant. To this decision of the court the prosecuting attorney duly excepted, and on behalf of the state now prosecutes this proceeding to obtain the decision of this court as to the law to govern in similar cases.

Lyman W. Wachenheimer, Pros. Atty., for the State. Parks Hone, for defendant.

CREW, J. (after stating the facts). The plea in abatement in this case was sustained by the court of common pleas upon the ground, and for the sole reason, as appears of record, that the state was without right to indict or prosecute the defendant, Emrich Veres, under section 3140-2, Revised Statutes of 1906, for failure to support his alleged illegitimate minor child, so long as the bastardy proceeding instituted against him by the mother of said child was pending and undetermined. The correctness of this ruling is the sole question presented by this record. It was recently decided by this court in the case of Ogg v. State, 73 Ohio St. 59, 75 N. E. 943, that an indictment under section 3140-2, Revised Statutes of 1906, for failure to provide for an illegitimate minor child, need not allege that, in a previous proceeding under the bastardy act, the accused had been adjudged to be the reputed father of such child, and, further, that evidence of such prior adjudication was not essential to a valid conviction on such indictment. With this holding and view of the law we are still content. It therefore only remains, in the present case, to inquire whether the pendency of a bastardy proceeding instituted by the mother of an illegitimate child is a bar to, or may be pleaded in abatement of, a prosecution by indictment subsequently brought against the father of such child under section 3140-2, Revised Statutes of 1906. This section, which is comparatively of recent enactment, provides as follows: "The father. or, when charged by law with the maintenance thereof, the mother, of a legitimate or illegitimate child or children under sixteen years of age, living in this state, who being able, either by reason of having means, or by personal services, labor or earnings, shall neglect or refuse to provide such child or children with necessary and proper home, care, food and clothing, or said child being legally an inmate of a county or district children's home, shall neglect or refuse to pay to the trustees of such children's home the reasonable cost of keeping such child in said home, shall upon conviction be deemed guilty of a felony and punished by imprisonment in the penitentiary for not more than three years, nor less than one, or in a county jail or in a work house at hard labor for not more than one year, nor less than three months: Provided, how

ever, if after conviction and before sentence he shall appear before the court in which said conviction shall have taken place, and enter into bond to the state of Ohio, in the penal sum of one thousand dollars, to the approval of the court as to surety, conditioned that he will furnish said child or children with necessary and proper home, food, care and clothing, or, if said child or children be in a county or district children's home, that he will pay to the trustees of said home the reasonable cost of keeping said child or children while remaining in the same, to be fixed by the court as to the amount and times of payment, then said court may sus* And propend sentence therein:

vided further, that upon a failure of said parent to comply with said order and undertaking, he or she may be arrested by the sheriff or other officer on a warrant issued on the precipe of the prosecuting attorney, and brought before the court for sentence, whereupon the court may pass sentence, or, for good cause shown, may modify the order and take a new undertaking and further suspend sentence as may be just and proper."

As will be observed, there is nothing whatever in the language of the above act that indicates or suggests a purpose or intent on the part of the Legislature that the provisions thereof should only be invoked after a proceeding under the bastardy act had been commenced and terminated. Nor is there anything in the nature of the relief given or the punishment prescribed that discloses a reason why the mere pendency of a bastardy proceeding previously instituted should be a bar to, or should furnish a ground for the abatement of, a criminal prosecution subsequently commenced under this section. While the two acts are so designed and drawn that each provides a remedy for the enforcement of the same natural duty, namely, the support by the father of his illegitimate child, in this respect only are they alike, either in their provisions or purpose. And, the remedies they afford for the enforcement of this duty being entirely consistent with each other, the rule is well settled that the satisfaction of one is the only bar to the prosecution of the other. In the present case the plea of defendant does not allege or show any judgment rendered or final order made in the bastardy proceeding instituted against him by the mother. Nor could any order made in that proceeding charging him with the maintenance and support of the child avail him as a defense in the criminal prosecution instituted against him under section 3140-2, unless it should appear that he was complying with said order and furnishing such support. Exceptions sustained.

SHAUCK, C. J., and PRICE, SUMMERS, SPEAR, and DAVIS, JJ., concur.

(75 Oh. St. 144)

BEVERSTOCK v. BOARD OF EDUCATION
OF BOWLING GREEN CITY SCHOOL
DIST. OF WOOD COUNTY et al.
(Supreme Court of Ohio. Oct. 16, 1906.)
SCHOOLS AND SCHOOL DISTRICTS-TEACHERS-
COMPENSATION.

Where a board of education has employed teachers for the public schools of the district for the school year next ensuing thereafter, and such teachers, during vacation and after their employment, attend the county institute during the week it is held in the same county, said board is authorized by the provisions of section 4091, Rev. St. 1906, to pay them for the institute week as an addition to their first month's salary as fixed by the terms of their employment, and at the same rate, on presentation of the certificates prescribed by said section. (Syllabus by the Court.)

Error to Circuit Court, Wood County.

Action by one Beverstock, a taxpayer of the Bowling Green City School District of Wood county against the board of education of the Bowling Green City School District of Wood county and others. The circuit court affirmed a judgment sustaining a demurrer and dismissed the petition, and plaintiff brings error. Affirmed.

On the 24th day of August, 1905, the plaintiff in error, as a taxpayer resident of the city of Bowling Green, and also resident of the Bowling Green school district of Wood county, Ohio, filed his petition in the court of common pleas of that county, in which he asked an injunction against said board of education, forbidding it to pay certain persons who had been employed to teach in its schools, for the time they occupied in attending the county institutes, and forbidding the clerk of said board issuing an order for their payment for said period. The more particular averments of the petition are, that annually, in the month of August, there is held in Wood county, a county institute, at which a great many of the teachers employed throughout the county attend for the purpose of more efficiently preparing themselves for the occupation of a teacher; that said county institutes are usually held from the 20th day of August to the 25th day of the same month. Prior to the 20th day of August each year, the said board of education employs all teachers, superintendent, and principals necessary for the instruction of the pupils of the schools in said district, for the year beginning on the first Monday in September following the holding of said county institute in August; and that on the 21st day of August, 1905, the said board of education authorized its clerk to issue an order to all teachers who present certificates of attendance at the institute held August 21 to August 25, 1905, for the payment of such sum due them for one week's pay, according to the rate for which said board hired them for the ensuing year, and also authorized the clerk to issue orders to such of the teachers as presented certificates for attendance at the institute held in August,

1904. The petition further alleges that at the time of holding said county institute, the schools in said district were not in session and had not been in session for more than two months prior thereto, and for the year 1904 did not convene for about two weeks thereafter, and will not, for the year 1905, convene for about two weeks thereafter, and that said schools, within said district, were not dismissed for the purpose of attending such institute, and that all the teachers who are proposed to be paid by the order of the board of education so passed on August 21, 1905, were, at the time of attending said institute, duly and regularly employed as teachers, by the board, both during the time of the institute held in August, 1904, and during the time of the institute being held in August, 1905. It is alleged that the payment of said teachers so authorized is illegal and contrary to law, and is a diversion and misappropriation of the funds raised by taxation for the purpose of conducting the schools of said district, and that, unless restrained by the court, said funds will be unlawfully withdrawn from the treasury and so diverted and misappropriated, to the irreparable damage, loss, and injury of this and other taxpayers of said district. This action is brought on behalf of the plaintiff as a taxpayer of said district and of the other taxpayers of said district, and that by the action of said board there will be unlawfully paid out of the funds so raised by taxation about $800. A temporary injunction is prayed against said acts of the board and its clerk, and that, on final hearing, the injunction be made perpetual. The defendants demurred generally to the petition, and the court overruled the demurrer, and made the injunction perpetual. On error to the circuit court, that court sustained the demurrer, dissolved the injunction, and dismissed the petition. Error is prosecuted in this court to reverse the judgment of the circuit court. ·

Edward Beverstock, for plaintiff in error. J. W. Grabiel and James O. Troup, for defendants in error.

PRICE, J. (after stating the facts). The decision of the present controversy depends upon a proper understanding of section 4091, Rev. St. 1906, which provides: "All teachers of the public schools within any county in which a county institute is held may dismiss their schools for one week for the purpose of attending such institute, and when such institute is held while the schools are in session the boards of education of all school districts are required to pay the teachers of their respective districts their regular salary for the week they attend the institute upon the teachers presenting a certificate of full regular daily attendance at said institute signed by the president and secretary thereof; the same to be paid as an addition to the first month's salary after said institute by the board of education by which said teacher

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