
    Probasco, Executor and Trustee, v. Raine, Auditor.—Probasco v. Raine, Auditor.
    
      Constitutional law—Public policy—County auditors—Powers of— Fees of.
    
    1 .If a statute is constitutional, it is valid, and can not be set aside by a court, as being againstpublic policy or natural right. There can be no public policy or right in conflict with a constitutional statute.
    2. The fee of four per centum to county auditors, provided for by section 1071, Revised Statutes, does not disqualify such auditors from performing tbe duties, and exercising the powers imposed on them by sections 2781 and 2782, Revised Statutes.
    3. As to what constitutes “a false return,” under section 2781, Revised Statutes, Ratterman v. Ingalls, 48 Ohio St., 468, is followed and approved.
    (Decided June 13, 1893.)
    Error to the Superior Court of Cincinnati, in General Term.
    On June 30, 1887, plaintiff in error, also plaintiff below, filed his petition in the Superior Court of Cincinnati against the defendant in error, also defendant below, as auditor of Hamilton county, seeking to enjoin said auditor from placing upon the tax duplicate, for taxation for the year 1887, the sum of one hundred thousand dollars of the stocks of the state, issued under the act of April 8,1856, held by plaintiff, for the years 1881 to 1886, both inclusive, which stocks plaintiff claimed were exempt from taxation, by virtue of the act of February 4, 1825, Ohio Laws, vol. 23, page 55, Chase’s statutes, page 1472, and the act of April 8, 1856, Ohio Laws, vol. 53, page 112.
    Defendant in his answer admits that he is about to place said stocks on the duplicate for taxation for the years aforesaid, and avers that said stocks are not exempt from taxation, and that they have been omitted for said years.
    The case was reserved to the general term of the Superior Court, and was there tried upon an agreed statement of facts, and judgment rendered for defendant at costs of plaintiff. By the judgment of the court the auditor was ordered to proceed and place said stocks on the duplicate for taxation for each of said years, including in said assessment for the year 1886, a penalty of fifty per centum. To all of which plaintiff excepted.
    Plaintiff filed his motion for a new trial, which was overruled, and exceptions taken.
    A bill of exceptions was filed bringing into the record the said agreed statement of facts, which is as follows:
    “ For the purpose of the trial of this cause, the parties to this action agree upon the following as a full and complete statement of the facts herein, and also that, in so far as the pleadings herein may vary therefrom, the said pleadings may be considered as amended, or may be amended at any time, so as to conform thereto:
    “1. That Julia A. Probasco died prior to the commencement of this action, and that for more than ten (10) years immediately preceding the time of her death, she was a resident of Clifton, Millcreek township, Hamilton county, Ohio.
    “That on the day preceding the second Monday in April in each of the following years, Henry Probasco, as trustee and executor of the estate of said Julia A. Probasco (the said Henry Probasco having been during all of said years a resident of Clifton, Millcreek township, Hamilton county, Ohio), was the owner and holder of certificates of indebtedness of the state of Ohio, commonly known as canal stocks, in the amounts of the par value thereof, as follows, viz.:
    1881..................................................................$100,000.00
    1882.................................................................. 100,000.00
    1883 .................................................................. 100,000.00
    1884 .................................................................. 100,000.00
    1885 .................................................................. 100,000.00
    1886 .................................................................. 100,000.00
    none of which were returned for taxation- nor listed upon the blanks left by the assessor in each of said years for his returns.
    “2. That said certificates of indebtedness were issued under and by virtue of an act of the legislature of Ohio, passed April 8, 1856, Ohio Raws, vol. 53, page 112, entitled: ‘An act to provide for the payment of the public debt of the state, due January 1, 1857, and for the payment of the interest on the public debt.’ And it is agreed that said certificates were in the form of the blank certificate attached to the agreed statement of facts in case No. 42,618, of this court, marked ‘Exhibit A.—A. Gardner, Jr., clerk of sinking fund commissioners;’ and which blank form, it is agreed, may be copied into the record herein as part thereof.
    
      “4. That the holding by plaintiff of certificates of indebtedness, issued as aforesaid, and the redemption thereof, as shown on the books of the sinking fund commissioners of the state of Ohio, were as follows, viz.:
    Oct. 24, 1865, certificate No. 1635.......................................$25,000.00
    “ “ “ “ “ 1637....................................... 5,000.00
    Jan. 24,1866, “ “ 1675, to 1679, inclusive............. 70,000.00
    Making a total of................................................$100,000.00
    “That on the 25th day of January, 1887, all of said certificates of indebtedness were fully redeemed by the sinking fund commissioners.
    “5 That there was no change in the ownership»of said certificates from the date of the first ownership thereof by plaintiff, save as above set forth, and that plaintiff was never otherwise the owner or holder of any of the said certificates of indebtedness, or of any other certificates of indebtedness of the state of Ohio.
    “ 6. That the certificates issued under the act of 1856, above referred to, bore the same rate of interest as those issued under the acts of 1825 and 1826, referred to in the pleadings, to-wit: six percentum per annum.
    “7. That, prior to the commencement of this action, the defendant, Frederick Raine, as auditor of Hamilton county, Ohio, was about to charge plaintiff on the tax lists and duplicates of Said county with the proper taxes on the said investments in said stock or bonds, as set forth in section 2, of this agreed statement of facts, and would have done so, except for the proceedings herein.
    “ 8. That, as to all other property owned by plaintiff subj'ect to taxation during each of said years, the same has been properly listed for taxation, and the taxes paid thereon by plaintiff.
    “9. That none of said bonds or the state stocks issued under the said act of 1856, nor the investments therein, have ever, as a matter of fact, been listed for taxation, or subjected thereto by state authority; but the question as to whether the law required the same to be listed and taxed under all the circumstances, is to be passed upon herein.
    
      “10. The amount of the indebtedness under the acts of 1825 and 1826, was, in 1865, $2,334,000.00, and remained then outstanding at the date of the passage of the act of April 8, 1856.
    , “ The income of said bonds was distributed and paid over by the executor and trustee to the beneficiary as the same was received.
    “ EXHIBIT ‘A.’
    “Provisions of the constitution of Ohio, adopted A. D. 1851.—Article 7. The faith of the state being pledged for the payment of its public debt, in order to provide therefor, there shall be created a sinking fund which shall be. sufficient tcf pay the accruing interest on such debt and annually to reduce the principal thereof by a sum not less than one hundred thousand dollars increased yearly, and each and every year by compounding at the rate of six per cent, per annum. Article 8. The auditor of state, secretary of state and attorney general are hereby created a board of commissioners, to be styled the commissioners of the sinking fund. “No. 1637. $5,000.
    “ State op Ohio Canal Stock.
    “Columbus, Ohio, Oct. 24, 1865.
    “Be it known the state of Ohio owes to Mrs. Julia A. Probasco, or her assigns, the sum of five thousand dollars, bearing interest from the first day of July, 1865, inclusively, at the rate of six per cent, per annum, payable half yearly on the first days of January and July, in the city of New York, being stock created in pursuance of an act of the general assembly of the state of Ohio, passed April 8, 1856, the principal of which is reimbursable in the city of New York, at the pleasure of the state, after the 31st day of December, 1886, which debt is recorded in this office, and is transferable only by appearance in person or by attorney, according to law, upon the books of the commissioners of the sinking fund.
    “In testimony whereof, this certificate hath been signed at the office of the board of commissioners of the sinking fund at Columbus, aforesaid, by the president thereof, countersigned by the secretary of state, who hath also registered and certified the same and affixed the great seal of the state thereto, and hath been certified to be valid and in due form, by the attorney general of the state.
    “James H. Godman,
    “ Auditor of State and President.
    
    “Countersigned and registered,
    “Wm. Henry Smith.
    f Great seal 1 -j of the j-(_ state of Ohio.)
    
    “Office op the Attorney General,
    “Columbus, Ohio, Oct. 24, 1865.
    “ It is hereby certified, that this obligation is in due form of law and valid.
    “ C. N. Olbs,
    “ Attorney-General,.”
    
    
      Paxton & Warrington, and Ramsey, Maxwell & Ramsey, for plaintiff in error.
    Brief of John W. Warrington and Lawrence Maxwell, Jr.
    
    The return by the plaintiff in error, was not a false return. Ratterman, Treas., v. Ingalls, 48 Ohio St., 468; Insurance Co. v. Cappellar, 38 Ohio St., 560; 3 Curwen, p. 1805, sec. 2; 4 Id., p. 3091, sec. 2; Revised Statutes secs. 228, 231; 53 Ohio L., 112; 2 Chase, 1474, end of sec. 5.
    Are the certificates taxable? If we are right in the foregoing, it follows that the question of taxability of the certificates does not really arise. 2 Chase, 1474; 53 Ohio L., 112; 65 Ohio R., 38; section 2737, Revised Statutes; Wise v. Miller, 45 Ohio St., at p. 397; McKee v. Hamilton, 33 Ohio St., 7; Horsey v. Heath, 5 Ohio, 353; Lee v. Hollister, 5 Fed. Rep., 752; Hotchkiss v, Marion, (Mont.) 29 Pac. R., 821; Curtis v. Hibbard, 9 Met., 328; 2 Chase, 1472, sec. 6, art. XII, of the constitution; States. Medberry, 7 Ohio St., 522; section 3 of article VIII, of the constitution.
    Was there power to exempt? Sec. 2 of art. VIII, of the constitution; Hill v. Higdon, 5 Ohio St., 249; Reeves v. 
      
      Treasurer of Wood county, 8 Ohio St., 333; Marmet v. State, 45 Ohio St., 63.
    Section 1071 of the Revised Statutes, gives to the auditor such an interest in any finding he may make against the tax-payer, under sections 2781-2, as to vitiate his proceedings and render the latter sections themselves void.
    We insist that the statutory scheme thus enacted provides for the exercise of quasi, if not real, judicial power; and that it provides for paying the officer exercising the power, a pecuniary reward for exercising it in favor of the state. If such a statutory scheme were not itself void, certainly the action of the auditor threatening to find the large sum in question against Mr. Probasco, and assess taxes against him and collect four per centum as a reward for doing so, ought to be void. It is obviously vicious. That the power of the auditor is judicial in its nature has been declared by this court, and has for many years been recognized by the legislature. Gager, Treas.. v. Prout, 48 Ohio St., 110; State v. Crites, Auditor, 48 Ohio St., 172; Commissioners of Wood Co. v. Junkins, 19 Ohio St., 348; Hoff v. Fuller, 45 Ohio St., 497; Lewis v. Laylin, 46 Ohio St., 664; Genin's Ex'r v. Auditor, 18 Ohio St., 534.
    Our contention is, that paying a reward, only, when the finding is in favor of the state, is at once committing an injury and depriving the person injured of the “remedy by due course of law” which is guaranteed by section 16 article I of the bill of rights; and is also taking property “ without due process of law,” within the inhibition of section 1 of the fourteenth amendment of the federal constitution. Gregory v. C., C. & C. Railroad Co., 4 Ohio St., 676; Pearson v. Atwood, 13 Mass., 324; State v. Shaw, 43 Ohio St., 324, and authorities cited at p. 329; Dimes v. Grand Junction Canal Co., 3 H. L. Cas. 759; Hall v. Thayer, 105 Mass., 219; La Fayette Conklin, Treas., v. Squire, 29 W. L. B., 157.
    Brief of R. A. Harrison.
    
    I. It is evident the general assembly by passing the act of April 8th, 1856, intended to renew and extend the canal loan upon the same terms and conditions under which it was contracted by the act of February, 1825, save only as to the time of payment. This is not a mere inference. The intention is as plain as if the very words renewal and extension had been written in the act. In other language, such is the meaning and intendment of the act, or it is wholly without meaning or intendment.
    II. The bonds belong to a class of indebtedness which the state is authorized to incur by section 2 of article VIII, of the constitution, which ordains that the state may “ contract debts to repel invasion, suppress insurrection, defend the state in war, or to redeem the present outstanding indebtedness of the state.”
    It is claimed- by the plaintiff in error, that éxemption from taxation of the bonds in question is authorized by this section without any reference to the question of renewal; which question has been before argued.
    On behalf of the defendant in error, it is asserted that the bonds are subject to taxation by virtue of laws which have been passed taxing all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise, as provided in article'XII, section 2, of the constitution.
    These two sections of the constitution properly considered and construed, will be found to be independent of each other. The truth is, there is not the feast connection nor conflict between them. They relate to entirely different conditions of affairs.
    III. Before the original action was brought, no attempt had ever been made, or suggested, to subject these bonds to taxation, for the simple reason that 'every body who had occasion to consider the subject was thoroughly convinced that they were not liable to taxation.
    An elaborate brief was, also, filed in the case, by Henry C. Noble.
    
    
      Spiegel, Bromwell & Foraker, county solicitors, W. L. Avery, W. W. Boynton, and L. W. Goss, for defendant in error.
    Brief of W. L. Avery.
    
    
      I. The contention of counsel for plaintiff in error is, that the exemption from taxation in this earlier act was adopted in the latter one, by the language: “That the commis-
    sioners of the sinking fund be and they are hereby authorized, to issue in accordance with the provisions and conditions of the act of February 4, 1825, creating the state debt, and of the several acts amendatory thereof, transferable certificates,” etc.
    An obvious comment upon this is that the commissioners of the sinking fund could not have so construed the act, since they did not incorporate in the issue any provision, or condition, for exemption from taxation.
    Much admirable sentiment is indulged in by learned counsel, both volunteer and regular, upon plighted faith of the state against taxation; but at all events no such pledge is to be found, where one would naturally look for it, on the face of the certificates themselves.
    To be issued “in accordance with the provisions and conditions of the act of February 4, 1825,” if by this it were meant to adopt the provision or condition for exemption from taxation, must necessarily have been to express such provision or condition in the issue. The omission of this by the commissioners of the sinking fund is conclusive of their construction at least. It was a contemporaneous construction by' those who were^o carry the statute into effect. Edwara's Lessee v. Darby, 12 Wheat., 207, 210; U. S. v. Pugh, 99 U. S., 265,269; Hahn v. U. S., 107 U. S., 402, 406; State ex rel. v. Cook, 20 Ohio St., 252, 259; Regina v. Archbishop of Canterbury, 11 Q. B., 581; Champaign Co. Bank v. Smith, 7 Ohio St., 42, 52, 53; Revised Statutes, 2730, 2731, 2736, 2737.
    Taxability will be presumed. Cooly on Taxation, 2d'ed., 204; Providence Bank v. Billings, 4 Peters, 563; Christ Church v. County Philadelphia, 24 How., 302; Gilman v. Sheboygan Bank, 2 Black, 513; Rwy. Co. v. Supervisors, 93 U. S., 595; Cincinnati College v. State, 19 Ohio, 110; Lima v. Cemetery Association, 42 Ohio St., 128; Ins. Co. v. Ratterman, 46 Ohio St., 159.
    
      The power of exemption from taxation is not incidental to the power of borrowing money, but to the power of taxation. It is but the withholding the exercise of the power of taxation. In a written constitution, the natural place for enjoining exercise of the power, or forbidding the withholding the exercise, would be under the head of limitation or regulation of the power.
    The argument of learned counsel for plaintiff in error, notably of two of them, is the reverse of this. It is upon article VIII, section 2, of the constitution, limiting the borrowing of money. The arguments further take a wide and interesting range upon the nature of the borrowing power, upon taxes as distinguished from assessments, upon the taxing power and police power, and upon “uniform rule,” as prescribed in section 2, article XII, of the constitution.
    For general reply it. may be that exemption from taxation is incident to the power of contracting, in the sense of requiring a contract to make the exemption. But this is a fallacious sense, when applied as the learned counsel would apply it. Champaign Co. Bank v. Smith, 7 Ohio St., 53, 54.
    Again, it may be there have been distinctions and exceptions taken by this court, upon the difference between taxes and assessments; and upon the definition of “property,” within the requirement of section 2, of article XII, of the •constitution, for taxing by “uniform rule,” and upon the taxing power and police power. Counsel have collected the ■cases. But none of them exempt “property” from the uniform rule of taxation; they only differ upon what is “taxation,” and what “property;” they merely affirm that, “in raising general revenue to meet the necessities of government, certain designated kinds of property are required to be taxed by a certain rule. ” Anderson v. Brewster, 44 Ohio St., 585.
    No provision of the constitution is more explicit in its terms or less open to construction. Bradley v. Bauder, 36 Ohio St., 33.
    The very last construction, therefore, that should be adopted, of the act for the issue of these certificates, would be one that makes it conflict with the constitution. Zanesville v. Auditor, 5 Ohio St., 592; Exchange Bank v. Hines, 3 Ohio St., 42, 43; Matheny v. Golden, 5 Ohio St., 374; Fields v. Commissioners, 36 Ohio St, 481.
    II. The question of renewal, is a point in argument for plaintiff in error, much elaborated by the briefs. But the extension was upon new terms. If the holders of the old issue chose to exchange for certificates of the new, doubtless they might have done so; at least, for argument’s sake, this will be conceded, although the act vested the commissioners of the sinking fund but with power to sell. If the holders did not want the new issue but wanted their money, the5r would be paid out of the proceeds of sale to others, of the new issue. In either case, the existing contract with the state created under the old issue would be at an end, and that issue extinguished.
    III. Section 2781 is construed in Ratterman v. Ingalls, 48 Ohio St., 468. The result is, as against the presumption arising from a return false in fact, to allow the circumstances, under which it was made, to rebut the inference of intention, or inference of culpable negligence in discharge of the duty to return taxable property for taxation. This leaves therefore upon the taxpayer, or rather non-taxpayer, the burden of excuse or explanation. The facts in Ratterman v. Ingalls, therefore, were all wanting here.
    IV. Section 1071, Revised Statutes. The auditor is not a judge. Const., article IV, section 1. The auditor is no more a judge than a fence-viewer is a judge. Both fence-viewer and auditor determine upon evidence; the exercise of deliberation and judgment is involved; and notice is required. Township trustees and county commissioners establishing ditches and roads, and other boards exercising similar judicial functions, just as the auditor, may be reviewed by petition in error. Haff v. Fuller, 45 Ohio St., 495, 497; Lewis v. Laylin, 46 Ohio St., 663, 676. But none of these is a judge.
    The legislature has not assumed to make the auditor a judge in his own cause. To leave the auditor to be compensated in that way may have been impolitic. It was to create an interest in him, of course; that was for the legislature to consider. But how was it unconstitutional? Or how unconstitutional, so providing the official fee for the service, to devolve upon him the inquiries and corrections under sections 2781 and 2782? The legislature was competent to provide official fees out of public money not otherwise appropriated. Anderson v. Commissioners, 25 Ohio St., 13; 11 Ohio St., 237, 238; 54 Mich., 383.
    In the only sense of the words having pertinency to the argument, however, that is, to the point of constitutional restrictions against the legislation, we submit, nevertheless, that with notice and opportunity for hearing, saving that the specific reward of the officer is not paid out of the property, for only the public charges here are out of the property, it would be due course or due process of law. The state for the proper purposes of assessment and taxation,1 with notice and opportunity to be heard in the proceeding, may determine the liability by the judgment of its own taxing officers. Spencer v. Merchant, 125 U. S., 345, 353, 356; Walston v. Nevin, 128 U. S., 378, 582; Lent v. Tillson, 140 U. S., 316, 327, 328, 331; Adler v. Whitbeck, 44 Ohio St., 571.
    Statutory inhibition aginst a judge sitting in his own cause will be construed to apply only to a judge eo nomine, or to a justice or other person holding a court eo nomine. Foot v. Stiles, 57 N. Y., 399; People v. Wheeler, 21 N. Y., 82; O'Reilly v. Kingston, 114 N. Y., 439, 450; State Winans Pros. v. Crane, 36 N. J. L., 394; Stockwell v. Township Board, 22 Mich., 341, 345; Hall v. Thayer, 105 Mass., 219; Wilbraham v. County Commissioners, 11 Pick., 322; Thompson v. Love, 42 Ohio St., 61; People ex rel. v. Kingston, 101 N. Y., 82.
    The question is only of the constitutionality of the legislation. The function of the auditor here was not judicial power within the meaning of the constitution. Logan Br. Bank, ex parte, 1 Ohio St., 432, 434; Murray's Lessee v. Hoboken, 18 How., 272, 280.
    The legislation, here, bore no relation to the apportionment of judicial power, but was in pursuance of the mandate, under the head of “finance and taxation” in the constitution, enjoining that laws be passed to subject all property to the common burden of taxation and let none escape. Art 11, Sec. 20; Cricket v. State, 18 Ohio St., 9, 21; Spencer v. Merchant, 125 U. S., 355.
    The county auditor is the only officer left with authority to reach omitted property for taxation. Pearce v. Atwood, 13 Mass., 324, 340; Dimes v. Gr. Junc. Canal Co. 3 H. L. Cas., 787, 788; Matter of Ryers, 72 N. Y., 1, 12, 13; Robb v. Brachman, 38 Ohio St., 423, 426; Freeman on Judgments, section 145; Thompson v. Love, 42 Ohio St., 72.
   BurkET, J.

The sections of the Revised Statutes under which the auditor claims the authority to act in placing omitted property on the duplicate for taxation, are sections 2781 and 2782. The validity and scope of these two sections have been determined by this court in former decisions. Gager v. Prout, 48 Ohio St., 89; Ratterman v. Ingalls, 48 Ohio St., 468; State ex rel. v. Crites, 48 Ohio St., 142.

But the point is now made that as the auditor receives a fee of four per cent, under section 1071, Revised Statutes, that he is thereby disqualified from acting in the case. The fees of the auditor in Hamilton county are regulated by a statute applicable to Hamilton county alone, and are somewhat less than the other counties of the state, but the principle involved is the same.

The question is a very important one and has been differently decided by different courts in this state, but this is the first time that the question is made here.

We have carefully considered, not only the arguments presented by counsel in this case, but also the published opinions of the lower courts on the question, and we are clear .in the opinion that the fees provided for in section 1071, do not disqualify the auditor from performing his duties under said sections 2781 and 2782.

Whatever may be the rule elsewhere, it is clear that in this state the validity of an act passed by the legislature must be tested alone by the constitution, and that the courts have no. right or power to nullify a statute upon the ground that it is against natural justice or public policy.

When the legislature is silent, the courts may declare the public policy, and mark out the lines of natural justice; but when the legislature has spoken, within the powers conferred by the constitution, its duly enacted statutes form the public policy, and prescribe the rights of the people, and such statutes must be enforced, and not nullified, by the judicial and executive departments of the state.

When the legislature, within the powers conferred by the constitution, has declared the public policy, and fixed the rights of the people by statute, the courts cannot declare a different policy or fix different rights. In this regard the legislature is supreme, and the presumption is that it will do no wrong, and will pass no unjust laws. The remedy, if any is needed, is with the people and not with the courts.

Section 2 of article XII of the constitution, requires the legislature to pass laws, taxing, by a uniform rule, all property in the state, except such as is therein exempted. This has been construed by this court to impose upon the legislature the dutjr of passing laws which will secure equality in the burden of taxation. The Exchange Bank of Columbus v. Hines, 3 Ohio St., 1.

The result to be attained by the laws to be passed under this section, is equal taxation, but the means by which that end shall be attained, is left to the judgment and sound discretion of the legislature acting within the powers conferred by the constitution.

To have equality in taxation, all property must be brought upon the duplicate. Some officer must be authorized and empowered to cause all property to be listed for taxation. Such officer must be paid for his services, either by fees or salary. The legislature has full power tinder the constitution to say what officer shall perform such duties, and in what manner he shall be paid.

It has enacted that such duties shall be performed by the auditor, and that he shall be paid as provided in section 1071. In the opinion of the legislature this is a proper means to attain, in part at least, equal taxation. It matters not whether the auditor acts judicially or ministerially in the discharge of his duties. The legislature is free to employ such means, as in its opinion, shall be most effective, whether they be judicial or ministerial, or both.

The objection urged in argument that a man cannot be a judge in his own case is a fallacy. The auditor has no case to be judged, but on the contrary, he is the taxing officer before whom other parties are cited to appear and show cause why they should not bear their equal burden of taxation.

His actions in the premises are subject to review in the courts, and thereby due process of law is had. Sections 2781 and 2782 are not in conflict with any provision or inhibition of the constitution, but seem to be clearly authorized by section 2 of article XII of that instrument.

The auditor acts under oath, and good faith and an honest purpose in the discharge of his official duties are to be presumed.

A probate judge, acts judicially in the appointment of guardians and administrators, and receives a fee for each appointment, and yet such fee does not disqualify him from acting in the premises. A justice of the peace acts judicially, and is paid therefor by fees collected from litigants before him, and while his mind may be biased in particular cases, it cannot be claimed that he is thereby disqualified from discharging his judicial duties. A judge who is a large taxpayer in his county or city, is not thereby disqualified from sitting in judgment in cases against his county or city. And in such case a resident taxpayer in such county or city is not by reason thereof disqualified from sitting as a juror in the trial of such case. Commissioners of Clermont County v. Lytle, 3 Ohio, 290.

The rule insisted upon in the case by plaintiff, as to the interest of the auditor, would disqualify every member of this court from sitting as a judge in the decision of this case.

Almost every officer in this state is more or less, directly or indirectly, interested in the result of the duties by him performed, whether ministerial or judicial, but such interest does not disqualify him from performing his official duties, unless the legislature has by statute so provided.

The case of Gregory v. Railroad Co., 4 Ohio St., 675, cited and relied upon by counsel, fully sustains this view of the powers of the legislature, and the limitations of the powers of the judiciary. In that case the legislature by statute declared the policy of the state to be, that when a judge should be interested in the subject-matter of the case, he should not sit therein, and that the case should be transferred to an adjoining county for trial and decision. The two judges in that case disregarded that provision of the statute, and sat as judges in a case in which they had an interest, and ‘the judgment was reversed for the reason that the judges were disqualified by statute. The court say on page 679, that the judges should have refused to sit in the case, and should have made known their interest at the earliest moment, so that the case. might under the statute be transferred to an adjoining county. The case was reversed because the judges refused to follow the policy of the state as declared by the statute, and not because of some public policy invented by the court. In this case the auditor has obeyed the statute, and we are asked to reverse the judgment and adopt a policy different from that adopted by the legislature. This we can not do.

The action of the auditor is not final, so as to cut off further inquiry, but the whole case may be gone into anew by proper proceedings in court, as was done in this case, and therefore no great harm is likely to result to those who have not made a false return of their property.

We therefore hold that the auditor should be sustained in exercising the powers and performing the duties imposed by sections 2781 and 2782.

But this does not dispose of the case. For myself, I think that these stocks are expressly exempted from taxation by the act of April 8, 1856, taken in connection with the act of February 4, 1825, and that the act of 1856 is constitutional. But, as the court is divided upon this question, the point is left undecided.

From the agreed statement of facts, it appears that these stocks were registered, and therefore could not be concealed; that such stocks had never been taxed by state authority, and that there was good reason for the belief that the stocks were not taxable; and therefore the court is unanimous in the opinion that the returns for taxation for the years 1881 to 1886, both inclusive, were not false returns, within the meaning of that term, as defined by this court in Ratterman v. Ingalls, 48 Ohio St., 468.

It therefore follows that the judgment of the Superior Court of Cincinnati in general term is erroneous, and that the judgment should be reversed, and judgment entered for' plaintiff as prayed for in his petition.

Judgment accordingly.  