the city of New Orleans, by its ordinance No. 4,523, dated May 21, 1878, attempted to grant to the second Canal Street, City Park & Lake Railroad Company, and which had already been granted to the first company of that name. In substance and in effect the right of way seized by the sheriff at the instance of Delamore is the right of way owned by and in possession of the plaintiff, and forms a part of its property, giving value, and necessary, to the use and enjoyment of the residue. The property thus seized in execution is claimed by the plaintiff, who is a third person, not a party to the judgment on which the execution is issued. This is the case provided for by articles 395, 396, 397, and 399 of the Code of Practice, and it is under these articles that the present suit is brought and justified. We think the injunction granted by the Fifth district court restraining the sale of the right of way and franchises of the plaintiff should not have been dissolved.

So much of the decree of the supreme court of Louisiana as was appealed from in this case is therefore reversed, and the cause is remanded to that court, with instructions to render a decree enjoining and restraining the defendants from advertising or selling or offering for sale, upon the execution described in the bill, the right of way and franchises granted by the city of New Orleans to the Canal Street, City Park & Lake Railroad Company by ordinance No. 4,523, administration series, dated May 21, 1878.

(114 U. S. 511)

STURGES . CARTER, Treasurer, etc.
(May 4, 1885.)

TAXATION-LAW OF OHIO-INCREASE OF TAXES-SUBPOENA TO PARTY-NOTICE.

A party having been subpoenaed to appear before the auditor to give information of all property within his knowledge that had not been returned for taxation, and while in attendance before such auditor, being informed by the latter of his purpose to increase the amount of the property returned by such party for taxation, there was a substantial compliance thereby with the statute of Ohio, which requires the auditor to notify the tax-payer, before making the entry of such increase on the tax list and duplicate, of his intention to do so.

2. SAME-NOTICE-Requirement of Statute.

The statute does not require any notice in writing, except the compulsory process of subpoena, to be served upon the person called to attend and testify.

3. SAME-RETROACTIVE LAWS.

A law is not retroactive in a legal sense that seeks to collect taxes that, but for concealment by tax-payers, should have been paid in previous years.

4. SAME-WESTERN UNION TELEGRAPH STOCK.

Certificates of stock of the Western Union Telegraph Company held by a party in Ohio are taxable in that state.

In Error to the Circuit Court of the United States for the Northern District of Ohio.

This was an action brought by John A. Lee, as treasurer of Richland county, in the state of Ohio, against Stephen B. Sturges to recover taxes levied for the years 1874, 1875, 1876, and 1877, upon shares of stock of the value of $100,000 in the Western Union Telegraph Company, and certain credits and investments owned by Sturges, who, during those years, was a citizen of Ohio, residing in the city of Mansfield, in said county. The amount of the taxes sued for was $10,776.83, with the penalty thereon of 10 per cent., amounting to $1,077.68, making a total of $11,854.50. The controversy in this case relates only to the taxes on the stock of the telegraph company. Before the trial the term of office of Lee, the original plaintiff, expired, and Merchant Carter, his successor in office, was substituted as plaintiff in his stead. The parties waived a trial by jury, and submitted the case to the court upon the issues of fact as well as of law. The court made a special finding of facts, from which it appeared as follows:

For 10 years before the commencement of this suit the defendant was a cit

izen of said county; for the years 1874, 1875, 1876, and 1877 he made returns in accordance with law, purporting to contain full and accurate lists of all his personal property subject to taxation; the returns were received and acted upon as being correct until the twenty-third of June, 1878, when the county auditor caused defendant to be subpoenaed to appear instanter before him at his office, to give information, pursuant to the statute in that case provided, of all property within his knowledge which had not been duly returned for taxation. The defendant accordingly appeared and submitted to an examination. While undergoing examination the auditor exhibited to him a list of judgments and mortgages in his favor not included in his tax returns, and then and there told him that, under the advice of the auditor of state, he felt it to be his duty to make a supplemental assessment against him for the four years named, of all the property which he owned during that period, which was subject to taxation in said county, and not included in his returns; called defendant's attention to the statute under which he proposed to proceed; and requested such explanation as he might deem it proper to make. Defendant thereupon made such explanations as he chose to offer. This was the only notice given by the auditor to the defendant*of his intention to assess him on all personal property owned by him during said period, and not included in his tax returns. The auditor then proceeded to assess the defendant on $100,000 of stock in the Western Union Telegraph Company for each of the years 1874, 1875, 1876, and 1877, and entered the same on a supplemental tax duplicate, and certified the same to the county treasurer for collection.

The defendant owned the telegraph stock so assessed during the four years aforesaid, and the same had not been included in his returns for taxation, nor had he been theretofore charged with or paid any tax on the same. The Western Union Telegraph Company was organized under the laws of New York; it had a paid-up capital of $41,000,000; most of its property was situated outside of Ohio; it owns 4,950 miles of telegraph wires, with the chemicals and office furniture used in connection therewith, in Ohio, all which for 10 years past it had regularly returned for taxation, and paid thereon from $10,000 to $15,000 per annum of tax to the state of Ohio.

From the findings of fact the court deduced the following, among other conclusions of law: "The auditors said supplemental assessment was authorized, and is regular and valid, and under the statutes of Ohio, as construed by the courts of the state, the defendant is liable in this action for the amounts assessed on his Western Union Telegraph stock, and judgment will therefore be rendered against him for the tax so assessed thereon, with the damages prescribed by statute, and interest and costs." The court thereupon rendered judgment against Sturges for $10,727.65, "the sum so as aforesaid found to be due," and thereupon Sturges sued out the present writ of error to reverse that judgment.

C. H. Scribner, H. G. Riddle, H. E. Davis, and Jas. E. Padgett, for plaintiff in error. John W. Jenner, for defendant in error.

WOODS, J. The first contention of the plaintiff in error is that the court erred in holding that the notice give to him by the auditor of Richland county was sufficient, under the statutes of Ohio, to authorize the assessment of additional taxes, and in admitting evidence of what was said by the auditor to the plaintiff in error when the latter was under examination. *Section 2782 of the Revised Statutes of Ohio, originally section 34 of the act of April 5, 1859, (Swan & C. St. p. 1452,) provides, in substance that if the county auditor shall have reason to believe that any person has given to the assessor a false statement of his personal property, moneys or credits, investments in bonds, stocks, joint-stock companies, or otherwise, which are by law subject to taxation, or that the assessor has made an erroneous return of any such property, he shall proceed, at any time before the final settlement with the county treasurer, to charge such person on the duplicate

with the proper amount of taxes, and to enable him to do this, he is authorized to issue compulsory process and require the attendance of any person "whom he might suppose to have a knowledge of the articles or value of the personal property, moneys or credits, investments in bonds, stocks, jointstock companies, or otherwise, and examine such person or persons on oath in relation to such statement or return; and it shall be the duty of the auditor in all such cases to notify every such person, before making the entry on the tax list and duplicate, that he may have an opportunity of showing that his statement or return of the assessor was correct. And the county auditor shall in all such cases file in his office a statement of the facts or evidence on which he made such correction." These provisions of the statute have been

in force ever since April 5, 1859. The findings of fact show that the plaintiff in error was subpoenaed to appear before the auditor to give information of all property within his knowledge which had not been returned for taxation, and that, while in attendance before the auditor, he was informed by the latter of his purpose to increase the amount of the property returned by him for taxation. This was a substantial compliance with the statute, which required the auditor to notify the tax-payer, before making the entry of such increase on the tax-list and duplicate, of his purpose to do so, so that he might have an opportunity of showing that his statement or the return of the assessor was correct. The subpœna served on the plaintiff in error, and the conduct of the auditor under it, gave him the opportunity to which the statute entitled him. But the plaintiff in error contends that, besides service of the subpoena requiring him to attend upon the auditor and give testimony in relation to property not returned for taxation, he was entitled to written notice before the auditor could make an entry on the tax-list of any additional property omitted in his returns. The statute does not require any notice in writing, except the compulsory process of subpoena, to be served upon the person called to attend and testify. But if any further notice was required, it was waived by the plaintiff in error. The finding of the circuit court shows that he appeared and submitted to an examination touching the correctness of his returns; that the auditor told him during such examination that as auditor he was required by his duty to make a supplemental assessment against him of the property which he had not included in his returns for the four years mentioned in the findings of the court, and requested him to make such explanations of his returns as he thought proper, and that he did make such as he chose. It does not appear that he complained that he had not received notice of the purpose of the auditor to increase the assessment of his property, or that the notice was not in writing, or that it was too short, or that he asked further time for consideration, or to take the advice of counsel, or to produce further evidence. From all that appears by the record, there was no surprise; he had opportunity to establish the correctness of the tax returns, and to show the auditor that he was not liable to an additional assessment. He cannot, therefore, complain of want of notice.

The plaintiff in error next insists that the law of 1878, by which the auditor assumed to correct the returns of the plaintiff in error for the years from 1874 to 1877 inclusive, and place his omitted property on the tax-list, was retroactive, and therefore forbidden by section 28 of article 2 of the constitution of Ohio, which declares that "the general assembly shall have no power to pass retroactive laws." Before the passage of the act of 1878, the law of Ohio-section 1 of the act of April 5, 1859, (46 Laws Ohio, 175; 2 Swan & C. Rev. St. Ohio, 1438)-provided that all property, whether real or personal, in the state, all moneys, credits, investments in bonds, stocks, etc., of persons residing therein, should be subject to taxation and entered on the list of taxable property for that purpose; and section 6 of the same act required the owner to make out and deliver to the assessor a statement under oath of all

the personal property, moneys, investments in bonds or stocks, required to be listed for taxation. This was the law in force during the years for which the taxes sued for were assessed and levied, and it is still in force.

Section 34 of the act of April 5, 1859, re-enacted as section 2782 of the Revised Statutes of Ohio of 1880, authorized, as we have stated, the county auditor, in case he believed any person had made a false return of his personal property, investments in bonds or stocks, to proceed at any time before the final settlement with the county treasurer, which was required to be made annually, to correct the return and charge such person on the duplicate with the proper amount of taxes. By section 1 of a supplementary act, passed March 29, 1861, (58 Laws Ohio, 47,) it was provided that if any person whose duty it was to make a return of property for taxation should make a false return, the auditor should ascertain the true amount of the taxable property that such person ought to have returned, and add thereto 50 per centum on the amount so ascertained, and the amount so ascertained, with the 50 per centum, should be entered on the duplicate for taxation. These enactments continued in force until the act of May 11, 1878, when they were amended by section 48 of that act by adding the following clause: "And the inquiry and corrections provided for in this and the next section may go as far back as the same can be traced, not exceeding the four years next prior to the year in which the inquiries and corrections are made; but as to former years no penalty should be added, and only simple taxes should be claimed." Laws Ohio 1878, tit. 13, p. 456; Rev. St. Ohio 1880, § 2781. As this act took effect upon its passage, it authorized the auditor, in any future corrections and adjustments of taxes due, to extend his inquiries back for a period of four years. It did not require him to wait four years after its passage before he could give it full effect. is this amendment of April 11, 1878, which the plaintiff in error insists is retroactive, because it authorizes the auditor to go back for a period of four years to correct false returns; whereas, before its passage he could not for that purpose go behind his annual settlement with the treasurer.

It

The complaint is not that the auditor was required to add 50 per centum to the value of the omitted property, for the old law authorized him to do that, provided he did it before his annual settlement with the county treasurer, and the new law authorized him to make the addition of 50 per centum for the current year only, so that in this respect the new law did not change the old; but that it was not competent for the legislature to go behind the annual adjustments made of the taxes by the auditor with the tax-payer; that if the state had wrongfully assumed too much, the citizen was barred, and if the citizen had listed too little the state was barred, and that legislation which undertook to open these adjustments was retroactive. In substance, this contention is that a tax-payer who has been evading the payment of the taxes due from him by making false returns, can shield himself behind the annual settlement made by the auditor with the treasurer, in which his returns were assumed to be true, and that the legislature can pass no act by which the falsity of the returns can for a limited period (in this case four years) be exposed, and the payment of the taxes enforced; in other words, that the taxpayer has a vested right in the fruits of his false returns. Such a proposition cannot be sustained. Foster v. Essex Bank, 16 Mass. 245.

In our opinion, no right of the tax-payer was invaded by the act of 1878. His investments in bonds and stocks were subject to taxation; the taxes upon such investments were due to the state, and the act of 1878 merely provided a method by which the taxes might be assessed and collected in spite of the annual settlements made by the auditor. It gave a new remedy to the state for enforcing a right which it had all the time possessed, namely, the right to the taxes upon property liable to taxation. Such an act is not a retroactive law within the meaning of the constitution of Ohio. In the case of The Society v. Wheeler, 2 Gall. 139, Mr. Justice STORY thus defines a retroactive, or,

as he calls it, a retrospective law: "Upon principle, every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective." The act of 1878 took away no vested right of the tax-payer, it imposed upon him no new duty or obligation, and subjected him to no new disability in reference to past transactions. The definition of Judge STORY was adopted by the supreme court of Ohio, in Rairden v. Holden, 15 Ohio St. 207, when construing the clause in the constitution of Ohio now under consideration. Applying that definition, it is clear the provision in the act of May 11, 1878, coinplained of, is not open to the objection that it is forbidden by the constitution of the state. See, also, Goshorn v. Purcell, 11 Ohio St. 641; Greene T'p. v. Campbell, 16 Ohio St. 11; State v. Richland Tp. 20 Ohio St. 362; Dow v. Norris, 4 N. H. 16; Clark v. Clark, 10 N. H. 380; Greenlaw v. Greenlaw, 12 N. H. 200. The authorities cited are conclusive against the contention that the legislation under review is retroactive.

The plaintiff in error next insists that the circuit court erred in deciding that certificates or shares of capital stock in the Western Union Telegraph Company, held by him, were taxable in the state of Ohio. Section 2 of article 12 of the constitution of Ohio declares: "Laws shall be passed taxing by a uniform rule all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise.' To give effect to this provision the act of April 5, 1859, (Swan & C. Rev. St. 1438,) entitled "An act for the assessment of all property in this state," etc., was passed. It was provided by the first section of this act as follows: "All property, whether real or personal, in this state, -all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise, of persons residing therein, * * * except such as is hereinafter expressly exempted,-shall be subject to taxation; and such property, moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise, or the value thereof, shall be entered on the list of taxable property for that purpose.' By section 2 of the same act it was enacted as follows: "That the term investment in stocks, whenever used in this act, shall be held to mean and include all moneys invested * * * in any association or corporation, joint-stock company or otherwise, the stock or capital of which is or may be divided into shares, which are transferable by each owner without the consent of the other partners or stockholders, for taxation of which no special provision is made by this act, held by persons residing in this state, either for themselves or as guardians, trustees, or agents."

There was no special provision for the taxation of such property as the shares held by the plaintiff in error in the Western Union Telegraph Company. It is plain, therefore, that under the act of April 5, 1859, the shares of stock held by the plaintiff in error were taxable in the state of Ohio, unless they were expressly exempted. The plaintiff in error relies upon an exemption contained in the ninth subdivision of the third section of the act, which is as follows: "(9) Each individual in this state may hold exempt from taxation personal property of any description of which such individual is the actual owner, not exceeding fifty dollars in value. * * * No person shall be required to include in his statement, as a part of the personal property, moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise, which he is required to list, any share or portion of the capital stock or property of any company or corporation which is required to list or return its capital and property for taxation in this state." Swan & C. Rev. St. 1441. Section 59 of the same act provides that "no person shall be required to list for taxation any certificate of the capital stock of any company, the capital stock of which is taxed in the name of the company.

As the findings of the circuit court show that a part of the property of the Western Union Telegraph Company was in the state of Ohio, and that it paid