
    Ratterman, Treas., v. Ingalls.
    . Taxation — Return of property for— What is “ a false return V — Section 2781, Revised Statutes, construed — Shares of stock — Sow taxable, when pledged.
    
    1. In order to render a return made by a taxpayer to the assessor of property for taxation, “ a false return” within the meaning of original and amended section 2781, Revised Statutes, there must appear, if not a design to mislead or deceive on the part of the taxpayer, at least culpable negligence.
    2. Where it is found that tax returns during the years 1881 to 1885, inclusive, from which certain shares of stock owned by the taxpayer were . omitted, were made by him under an honest belief that the shares were not taxable, which belief was induced by reliance upon the opinions to that effect given by capable lawyers, and like opinions by the taxing officers of the county and state of his residence, and by the action of such officers in refusing to correct returns of persons whom they knew were holders of such stock, and it further appears that the taxpayer had .given to the county auditor, in the year 1881, information as to his ownership of such stock, and had not, during any of said period, done any act indicating a purpose to conceal such ownership, the returns so made will not be treated as false returns within the meaning of section 2781, Revised Statutes, although it is afterwards adjudged by the courts that such shares were, under the laws of the state, taxable during each of the years named.
    3. Shares of stock which'have been pledged as collateral security for loans, with power to the pledgee to transfer the shares to his own name, and in case the loans are not paid, to sell, but which stand on the books of the company in the name of the pledgor, are properly taxable in his name.
    (Decided June 16, 1891.)
    Error to Superior Court of Cincinnati.
    Action was brought June 80, 1887, by the plaintiff in error, in the Superior Court, to recover taxes charged by the auditor of Hamilton county for the years 1881 to 1886, inclusive, with penalty of fifty per centum for the year 1886, by reason of the omission by the defendant of his holdings of stock of The Cincinnati, Indianapolis, St. Louis & Chicago Railway Company from his tax statements to the assessor in each of these years. Upon trial at special term, judgment was rendered for the defendant as to the claim for taxes for the years 1881 to 1885, inclusive, and for the plaintiff for the full amount claimed for the year 1886. The court made findings of fact and of law separately. A bill of exceptions was also taken. Each party presented a petition in error to the general term. The court there affirmed the findings of fact, after argument and examination of the evidence, and affirmed the judgment of the special term.
    Among the findings of fact are the following:
    “ 4. From August, 1852, until August, 1886, the auditors of Hamilton county and the annual boards of equalization of Cincinnati, in said county, where said Ingalls resided during all of said period, declined and refused to take steps to correct returns for taxation by owners of shares of stock in said and like corporations, who had omitted the same from such returns, although such officers knew that a large number of such shares were owned by persons so making returns for taxation in said county; and declined and refused to tax such shares when ownership thereof was disclosed in tax returns, but therein claimed to be non-taxable; which action of said taxing officers was at various times during said period prior to 1881 submitted to the auditor of the state of Ohio, and approved by him, and no directions of a different nature were afterwards given by said auditor of state to said county auditor and city board of equalization, or either of them, prior to November, 1886. Opinions that such stock was not taxable under the laws of Ohio were given by distinguished lawyers of that state to said Ingalls, and others prior to the day preceding the second Monday in April, 1881.
    “ In April, 1881, said Ingalls stated to the then auditor of Hamilton county, in a conversation on the streets of said city, as to the taxability of The Pittsburgh, Fort Wayne & Chicago Railway Company stock, and said C. I. St. L. & C. Ry. Co. stock, that he owned shares of said stock last named. Such actions and rulings by said taxing officers, and such opinions so given were generally known, and until November, 1886, the belief was practically universal in said Hamilton county that the statutes of Ohio did not subject such shares of stock to taxation in the hands of the owner or holder thereof, or require the' owner or holder thereof to include the same in the list or statement of his taxable property to be delivered to the assessor or auditor.
    “5. Knowing the facts and having the belief aforesaid, said Ingalls omitted his investment in said stocks from the statement for taxation of his chattel property given by him in each of said years to the ward or township assessor. This belief was honestly held by said Ingalls; he had reasonable grounds for the same, and there was no intent on his part to evade the payment of any taxes which the law imposed.”.
    To reverse the judgment against him as to the years 1881 to 1885, the plaintiff below has filed here his petition in error, and the defendant in error has filed a cross petition in' error to reverse the judgment against him for taxes for the year 1886, and penalty thereon.
    
      Wm. Jj. Avery, Gross §- Cohen, and Foraker, Black Bosworth, for plaintiff in error.
    Brief of Wm. L. Avery.
    
    That the auditor of Hamilton county, and annual city board of equalization for Cincinnati, “declined and refused” to correct returns for taxation by owners of such shares who had omitted them from their lists, or- were returned, to tax them, had only for support of it the evidence of Culbertson to his being cited before the board touching his Pittsburgh, Ft. Wayne & Chicago Railway stock, and to the board taking no action; and the evidence of the insurance company’s returns of the stock as not taxable. This was not “ action,” although so called in the findings, “ which action of said taxing officers,” etc., but inaction. It was only, that, official ease and convenience were being consulted in Hamilton county by keeping “ hands off.”
    That “ knowing the facts and having the belief aforesaid, said Ingalls omitted his investment in said stocks from the statement for taxation,” etc., is a finding, without any evidence of knowledge in Mr. Ingalls, except of the opinions of lawyers, Mr. Springer’s and his own, and of the belief “ practically universal ” in the county. He did not know of the letters to Bell or to Hornberger, the conversation of Thrasher with the state auditor, the returns of the insurance companies, the citation by boards of equalization to Culbertson, or of exhibits “ G ” and “ H, ” from files of the state auditor. He knew, of course, the “ practically universal opinion,” indeed, had done all that in him lay to promote it. The plaintiff proved the taxation of stocks of The Pittsburgh, Ft. Wayne and Chicago Railway Co., by the auditors of Highland county from 1879, and of Columbiana county, from 1881, and the letters from state auditor’s office to M. D. Harter; but the finding of the belief being practically universal of the non-taxability of such stocks, and of auditors and boards of equalization declining and refusing to tax them, is confined to Hamilton county.
    “ Though penal statutes are said to be construed strictly, yet tbe courts are bound to give effect to their plain and obvious meaning, and not narrow the construction. They must search out and follow the true intent of the law giver.” Buller, J., in 1 Term, 101; 'Story, J., in 3 Sumner, 209 ; Pike v. Jenkins, 12 N. H. 255. 1 Kent. Comm., marginal page 467, note d. “ In penal statutes, we are not at liberty to depart from the words employed; but we are bound to ascertain the fair meaning of those words, in view of the sense in which they are used.” Ranney, J., Turner v. State, 1 Ohio St. 422, 424, 425.
    “ False return or statement ” is a return or statement to an assessor which is false. How false ? Why, false for the purposes of assessment. That is the purpose for which made to the assessor; the connection determines. The full language is, “ shall make a false return or statement, or shall evade making a return or statement.” In the one case as the other, the auditor is required to “ ascertain the true amount the person ought to have returned or listed.” This from the same necessity, or necessity of the same nature, that taxables shall not escape by omitting in listing, whether the omission be to return any list at all, or, in returning a list, to include the property. “ Evade ” is but to avoid; no sinister motive, within the purview of the statute, is essential to it. It is not connected with “false,” as applying to a return made; but is necessarily independent of any such connection, since it implies that no return is made. It is not to “ evade ” making a true return or statement, but to “ evade ” making any. And if from some sort of mental association with “ false,” that were to be taken as if written, “ false with intent to evade,” it would be expected to find in the provisions of section 2782, for notice to the person, opportunity there given to show no intent to evade. But, on the contrary, all there provided for, is to show the return or statement to have been “ correct.” Thus; § 2782. “ It shall be the duty of the auditor, in all such cases, to notifj^ 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.”
    As to the penalty, that is not the essential object. In the original section, to which necessarily the same construction of the word “false ” must attach, as in the amended section, the remedy for the back years was without penalty. In the supplementary act of March 29, 1861, which was the same in its language, “ if any person, etc., shall make a false return, or shall evade making a return,” and was for the addition of fifty per centum, but was confined to the current year, the duty of the auditor was “ to ascertain the true amount of the taxable property, etc., that such person ought to have returned or listed, in the manner prescribed in the 84th section of said act.” (Act of April 5, 1859.) This latter section becoming 2782 of the Revised Statutes, the provisions of the supplementary act were embodied in section 2781, and extended back four years, without addition of the fifty per centum for the back years, but continuing to express, in even more unmistakable language, that the conditions of the inquiry in both sections were the same. Thus: “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,” etc. The same connection is continued in the section as amended, thus: “ The county auditor shall, for each year, ascertain, as near as practicable, the true amount of personal property, moneys, credits, and investments that such person ought to have returned or listed, for not exceeding (the) five years next, prior to the year in which the inquiries and corrections provided for in this and the next section are made.”
    
    The general tax law (act of April 13, 1852), contained identically the same language as section 34 of the later act; indeed this was but the re-enactment of section 46 of the former. Section 46 of the act of 1852 is construed in Champaign Co. Bank v. Smith, 7 Ohio St. 42; “ The intention of the whole section, the purpose of its insertion, clearly is, to declare that the oath of an interested party shall not be conclusive of the correctness of the statement; but that fraud or mistake therein shall, if discovered in proper time by the auditor, be corrected.”
    The familiar rule of statutory construction is, that, “ where the same word or phrase is used more than once in the same act, in relation to the same subject matter and looking to the same general purpose, if in one connection its meaning is clear, and in another it is otherwise doubtful or obscure, it is in the latter case to receive the same construction as in the former, unless there is something in the connection in which it is employed, plainly calling for a different construction.” Rhodes v. Weldy, 46 Ohio St. 234; Raymond v. Cleveland, 42 Ohio St. 529.
    The default, for which the supplementary act provided, was the same as in section 34 of the general tax law of 1859, to which the act was supplementary; and “ the true amount ” the person “ ought to have returned or listed ” was to be ascertained in “ the manner prescribed ” in said section 34. The notice to be given under that section, now 2782, Revised Statutes, was only that such person “ may have an opportunity of showing that his statement or return of the assessor was correct;” thus making the “ correctness ” of the statement, or its truth in normal sense, the statutory test.
    The amended section has been construed by this court. 
      (Gayer, Treas., v. Prout et al., 25 Law Bulletin, 197.) Minshall, J. (p. 201) : “ This section in its original and amended form, simply prescribed a remedy for the recovery of taxes due the state and its subdivisions under those provisions of our tax law, which make it a duty of every citizen to return his property for taxation and to pay the taxes levied upon it equally with others.”
    The principle of construction is the uniform one for the advancement of the remedy, applying to tax laws. Taylor v. United States, 3 How. (U. S.) 197, 210; Cliquots’s Champagne, 3 Wall. 114, 145; United States v. Hodson, 10 Wall. 395, 406; U. S. v. Bbls. Spirits, 2 Abb. (U. S.) 305, 315; Cornwall v. Todd, 38 Conn. 443, 447.
    Finally, at its last analysis, the question comes to this: The return or statement of the defendant in all these years was false. No ? It was true then ? But this could not be ; it was certainly not a true statement of his investments subject to taxation in those years. But he believed it to be true? No! he did not; he knew he owned his stock and that he was listing or returning them. But he believed them to be not taxable ? Did he ? That was belief against the law then. But it was a reasonable belief ? As if the law, against itself, would allow of any reason for belief. Ignorantia juris neminem .excusat.
    
    
      Harmon, Colston, Groldsmith $ Hoadly, Wm. Worthington, J. H. Bates, Stephens, IAneoln Smith, John W. Warrington and Thomas MeJDougall, for defendant in error.
    Brief of Wm. Worthington, Harmon, Colston, Goldsmith & Hoadly.
    
    I. Is a return, made honestly, under a mistake of law, false, within the meaning of that word as used in Revised Statutes, see. 2781 ?
    First, it will be observed that although the adjective false is frequently used as the opposite of “ correct” or “true,” yet this is not the strict .and primary meaning of the word, but a secondary and broader one involved by the process of weakening so common in the growth of language. Webster’s Dictionary; The International Dictionary; Webb v. State, 29 Ohio St. 358.
    That this same active working of a malicious mind is ordinarily an essential part of the meaning of the word when used in English Law, is stated in the Law Dictionaries. 1 Abbott’s Law Diet., 478 ; Anderson’s Law Diet., 447 ; 7 Am. & Eng. Encycl. of Law, 661.
    As the primary meaning of the adjective “ false ” and its usual signification in jurisprudence, is “ untrue with intent to deceive ; ” but as used in common speech it has sometimes this primary meaning, and at others the broader one of merely “ untrue ” without regard to intent; in which sense was it used in Revised Statutes, sec. 2781? Presumably in its usual juridical meaning. Grogan v. Garrison, 27 Ohio St. 50, 63. And this presumption is here intensified by looking at:
    1. The subject matter of the statute, the purpose at which it was aimed; for “ all words, whether they be in deeds or statutes, or otherwise, if they be general, and not express and precise, shall be restrained unto the fitness of the matter or person.” Steamboat Messenger v. Pressler, 13 Ohio St. 262; Horton v. Horner, 16 Ohio 145, 147; Board of Education v. Board of Education, 46 Ohio St. 395.
    2. The collocation for — as Lord Bacon again says — copulatio verborum indicat acceptationem in eodem sensu ; or more briefly, noscitur a soeiis.
    
    3. The history of the legislation, and the nature of previous acts on the same general subject.
    The purpose of the statute is apparent, and has been briefly stated by this court in Gager v. Prout, 25 Bull. 200.
    What is an honest return ? One made truly according to such lights as the taxpayer can reasonably be expected to have. Dishonesty necessarily imports a conscious transgression.
    Securing honest returns being the end, and punishment the means, it cannot be supposed the general assembly purposed to punish alike the unintentional and the intentional error, the guiltless equalty with the guilty (I say guiltless, 
      because nullus reus nisi mens red) ; rather the means will be limited to the end. The evil thought makes the guilty act. Mistakes may occur combined with the purest and best motives ; through mistake made in perfect innocence and good faith, a tax return may be erroneous. To suppose the lawmaker intended to punish such mistake equally with designed fraud, is to impute a ferocity unknown to the code of Draco. Sawyer v. State, 45 Ohio St. 344.
    Again, the penal nature of the act, by the established canon of construction, requires that if its words be double in their significance, having a larger and a narrower meaning, the narrower shall be held the one intended. This rule has been repeatedly recognized by this court. Schultz v. Cambridge, 38 Ohio St. 659; White v. Woodward, 44 Ohio St. 347; Sutherland on Statutory Construction, secs. 361,363; Cooley on Taxation (2d ed.), 265, 275; Mitchell v. State, 42 Ohio St. 383; Stephenson v. Higginson, 3 H. L. Cas. 686.
    Its application is also important in the case at bar; for not only is the judicial meaning of the adjective “false” as being not merely “untrue,” but “untrue with intent to deceive,” declared in the law dictionaries, but the judicial decisions are numerous, and, so far as I know, uniform, that when a penalty is affixed to the doing of an act falsely, mere error is not aimed at, but the intent with which the act is done; it must be done wilfully, with intent to deceive, else the penalty is not incurred. United States v. King, 5 McLean, 208; Putnam v. Osgood, 51 N. H. 192, 206, 208; Maher v. Hibernia Ins. Co., 67 N. Y. 282; Franklin F. I. Co. v. Updegraff, 43 Pa. St. 350; Franklin Ins. Co. v. Culver, 6 Ind. 137; Marion v. Great Rep. Ins. Co., 35 Mo. 148; Mason v. A. M. A. A., 18 Up. Can. (C. P.) 19; Derry v. Peek, 14 App. Cas. 337.
    The provisions of Revised Statutes, section 2781, apply alike to any person who shall “ make a false return or statement, or shall evade making a return or statement.” There can be no question as to the meaning of the word “ evade; ” it always signifies volition, a purposed and intentional avoidance and not a mere omission; and when used with reference to a duty or obligation, it is invariably a word of sinister signification. An instance, with reference to a revenue law, is found in Smith v. The State, 43 Ala. 344.
    The use here of the word “ evade ” sheds a flood of light upon the sense in which the legislature used the word “ false,” if any obscurity could otherwise exist. It is absolutely incredible that it was intended to mulct with a fine, one, who by blameless accident omitted a portion of his property from his return, and at the same time let one, who by a similar accident omitted all his property, go free; yet such result would necessarily happen if a return erroneous without moral fault is to be considered false within this section.
    For application of this maxim in ascertaining the sense in which words are used, see, in addition to the cognate cases on insurance policies already referred to, Howland v. Carson, 28 Ohio St. 625, 628; Elliott v. Shaw, 32 Ohio St. 431, 434; Rutherford & Co. v. Railroad Co., 35 Ohio St. 559, 563; Myers v. Seaberger, 45 Ohio St. 232, 236.
    The history of the amendment. to Revised Statutes, sec. 2781, leads to the same conclusion as that drawn above from its language. Sec. 4 of act of 1816, 2 Chase 987; sec 7 of act of 1824, Ibid. 1383; sec. 28 of act of 1825, Ibid. 1483; sec. 15 of act of 1831, 3 Id. 1804; Act of 1846, secs. 32, 33, 35, 36, 39, 40, 43; 2 Curw., 1273, 1276 ; Act of 1852, secs. 26, 28, 43, 44, 46; 3 Curw., 1774,1780; Act of 1859, secs. 18, 20, 32, 33, 34; 4 Curw., 3313, 3318; Act of 1878, secs. 17, 19, 22, 51, of chap. 2; 75 Ohio L. 446, 448, 458; Revised Statutes, secs. 2750, 2752, 2755, 2784; see. 14, act of 1847, 2 Curw. 1359; Act of 1857, 4 Curw. 2985; Exchange Bank v. Hines, 3 Ohio St. 35; Champaign County Bank v. Smith, 7 Ohio St. 42, 48, 49; Bloom v. Richards, 2 Ohio St. 387, 402; Medical College v. Zeigler, 17 Ohio St. 52, 67; sec. 2, act of 1857, 4 Curw. 2986; sec. 1, act of March 29, 1861, 1 Sayler, 54, from which, by subsequent amendments, the present sec. 2781 of the Revised Statutes has been developed. Genin v. Auditor, 18 Ohio St. 534.
    It is, of course, contended by counsel for plaintiff in error (for this is absolutely essential to their case), that the phrase “false statement,” in this act of 1861, means merely incorrect statement. That one having no knowledge of the previous legislation would come to a contrary conclusion, I have already urged. Does not the history of the legislation confirm this view beyond a peradventure ? From 1816 to 1846, the law punished with penal taxation him who had wilfully tried to defraud it in his sworn return, and not him who had unwittingly made an error therein. From 1846 to 1857, no punishment of any kind was imposed for any such errors, whether wittingly or unwittingly made. From 1857 to 1861, the penalty of all costs of correction was imposed for wilful errors ; but for other errors the taxpayer either paid no costs at all, or else only his own, which in all probability would amount to none at all.
    Then comes this act of 1861, which, wherever it applies, imposes a penalty. It was not a remedial act, merely enabling the state to collect its just dues, for that power was fully given by sec. 34 of the act of 1859, now Revised Statutes, sec. 2782. It was a preventive act, passed solely because of the penalty it imposed, and expected by that penalty to check frauds upon the revenue — a penal act in the usual cense of that term.
    In the revision of the tax laws'in 1878, the act of 1861 was amended so as to permit the collection not merely of the taxes and penalty for the current year, but of simple taxes for the four years preceding. 75 Ohio L. 456, sec. 48 of ch. 2. This amendment, it may be remarked in passing, originated with the general assembly and not with the codifying commission. In this form the law was carried into the Revised Statutes as sec. 2781. But while the number of years for which correction could be made was increased, the circumstances under which such correction could be made were left unchanged. The subjects of correction under this act were still such false statements, and such only, as had previously been corrigible under the act of 1861, if attacked in time. The penalty was not charged for back years; but unless it could have been if the inquiry had been made in the year the statement was rendered, the right to correct for back years was not given by Revised Statutes, sec. 2781.
    The amendment of 1886, 83 Ohio L. 82, increases the number of back years open to review to five, and imposes a penalty of fifty per centum for each year ; but the kinds of false statements and evasion which can be thus punished still remain the same as under the act of 1861 — statements wilfully false, made with intent to evade taxation.
    It follows that, before there can be a correction of any statement under that statute, the knowledge of error, the intention to evade the payment of taxes, must appear. For it is well settled that where a penalty or forfeiture is imposed, not for the mere doing of an act, but the doing of it wilfully, or with a certain knowledge or intent, the existence of that will, knowledge, or intent is an essential part of the offense, and must be proved before the penalty or forfeiture is inflicted. United States v. Buzzo, 18 Wall. 125; Stebbins v. Edmands, 12 Gray 203; Miller v. State, 5 Ohio St. 275; Crabtree v. State, 30 Ohio St. 388; Ex parte Falk, 42 Ohio St. 638; Cohn v. Neeves, 40 Wis. 392; United States v. De Groot, 30 Fed. Rep. 764; Queen v. Tolsen, 23 Q. B. D. 168; Breitung v. Lindauer, 37 Mich. 217; State v. Fritchler, 54 Mo. 424.
    Where knowledge or intent is a necessary ingredient of an offense, not merely ignorance of fact, but ignorance of law may establish innocence. 1 Bishop on Criminal law, sec. 297, 300; Meirelles v. Banning, 2 Barn. & Adol. 909; Regina v. Bowler, Carr. & Marsh 559; Regina v. Ellis, Ibid. 564; Regina v. Dodsworth, 8 Carr. & Pa. 218; State v. Macomber, 7 Rhode Island 349; Commonwealth v. Bradford, 9 Metc. 268; Crabtre v. State, 30 Ohio St. 382, 388; Republica v. Hannum, 1 Yeates (Pa.) 71; Cutter v. State, 36 N. J. L. 125; Pier v. Hanmore, 86 N. Y. 95; Bonnell v. Griswold, 89 N. Y. 122; Wright v. Smith, 5 Esp. 203; Regina v. Reid, Carr. & M. 306; Regina v. Mayor, L. B. 3 Q. R. 629; State v. Preston, 34 Wis. 675; Thomas v. State, 14 Tex. App. 200; Rose v. State, 19 Tex. App. 470; Black v. Ward, 27 Mich. 191; Brent v. State, 43 Ala. 297; Folwell v. State, 49 N. J. L. 31; Wharton on Criminal Evidence, sec. 724; Del. Div. Canal Co. v. Commonwealth, 50 Pa. St. 399.
    Thus far, I have discussed the meaning of “ false ” in sec. 2781, as if this court had not heretofore decided it, having taken this course because counsel for plaintiff treated it as an open question, and because I saw no reason to shrink from the debate thus challenged. But in fact the question has already been decided, I submit, by the case of Ins. Co. v. Cappellar, 38 Ohio St. 560; Ins. Co. v. Ratterman, 46 Ohio St. 153.
    II. The ownership of a pledgor, under the circumstances in this case, is not such an ownership as makes the pledgor taxable for the property at its full value as an “ investment in stocks,” but only for the difference in value between the property and the loan, as a credit. It is needless to examine the cases of Henkle v. Salem Mfy. Co., 39 Ohio St. 547, and Norton v. Norton, 43 Ohio St. 509, for the rules of law generally as to where the ownership of pledged stocks is as between pledgor, pledgee, the corporation, and the world at large, or any of them. The result here does not depend on that rule, but upon the specific provisions of the tax law.
    The enactment in Revised Statutes, sec. 2737, that the tax statement shall include the amount of all credits and of all moneys invested in bonds, stock, etc., is to be read in connection with the definitions given in section 2730, and the requirements of section 2736.
    Where stocks are pledged with power to transfer and sell, the pledgor no longer holds .moneys invested in stocks within the meaning of the definition of that phrase in section 2730; nor are these stocks investments in his possession or under his control under section 2736. The actual possession and holding, as well as the power of control, is no longer in the pledgor, but in the pledgee. The pledgor is left holding, possessing, and controlling simply a right to demand the return of the stock upon payment of the loan, which is nothing more than a “ credit ” under the definition of that phrase in section 2730. The difference between investments, or moneys withdrawn from the ordinary business, and credits, is noted in Payne v. Watterson, 37 Ohio St. 124, 125.
    As the auditor charged the defendant not for omitted credits, but for omitted investments in stocks, I submit that no recovery could be had in this action, based as it is upon an erroneous correction.
   Spear, J.

A large amount of money is involved in the decision of this case, and many persons are interested in the result. With it were argued and submitted two cases of Executors of Reuben Springer, deceased, v. The Plaintiff in Error, brought in the court below to recover back taxes upon similar stocks. Some seven other cases, decided in the superior court, of like character, are also to depend upon the event of this case. Having in mind these facts, quite full consideration has been given the case by the court, and, impressed with the practical importance of the questions involved, more than the usual space is given to it in this report.

That the stock of the railway company is taxable against the shareholders in this state, it being a foreign corporation, though having property within the state on which it pays taxes here, was established by the decision in Insurance Company v. Ratterman, 46 Ohio St. 153, decided at January term, 1889.

The principal question at issue involves a construction of section 2781, of the Revised Statutes, and the chief point of dispute relates to the true meaning of the word “ false.”

This section was amended April 14, 1886, but the change in no way affects the questions made by the record. As it now stands, that section reads as follows:

“ See. 2787. 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* moneys, credits and investments that such person ought to have returned or listed, for not exceeding [the] five years next prior to the year in which the inquiries and 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 question mainly argued is: Were the returns, or any of them, made by the defendant to the assessor, false returns within the meaning of this section ? Necessarily, this is, in great measure, a question of fact, and to the end that this court may correctly apprehend the facts, it is asked that we review the findings of the trial court in the light of the evidence, the claim being that the findings are against the weight of the evidence.

Without denying to itself the right to review the evidence upon petition in error, this court has heretofore declined to examine the evidence with a view of determining whether or not the trial court erred in its decision upon the weight of the evidence. In Damarin v. Huron Iron Company, 47 Ohio St. 590, the court uses this language: “ We might, upon the evidence in this case, have arrived at a different conclusion from the court below as to whether there was any actual intention on the part of the company to continue business after the execution of these mortgages. There are a number of things in the evidence that might be regarded as casting a doubt upon this question. Still it is not the practice of this court to weigh the evidence, but to accept the facts as they have been found by the court in which the evidence was heard.” See also, Ford v. Osborne, 45 Ohio St. 1. Following the well established precedent, therefore, we are, in this case, to take the facts as found by the trial court.

Accepting the findings as truly setting forth the facts, were the returns false ? In support of the contention of plaintiff in error it is urged that the word “ false ” is to be taken as implying simply the opposite of correct, or true, while the defendant in error insists that the word, as used in the statute, necessarily implies that which is not only untrue, but is designedly untrue, the result of an intent to deceive. Of course, no one would doubt that the latter definition satisfies, to the fullest extent, the terms of the statute ; does the former ?

There is abundant authority among lexicographers for either definition. As used here, should the word be given a broad meaning, or should we seek a more restricted meaning ? It is to be borne in mind that the statute, while not strictly penal, is of that nature, as well as remedial. It is elementary, we suppose, that remedial statutes which prescribe penalties or forfeitures, though not to be construed strictly as criminal statutes are construed, nevertheless will not receive that liberal construction which would be given if .they were simply remedial. The legislature having used words admitting of more than one meaning, it is the court’s duty to ascertain, if it may, the sense in which the words were intended, the intention of the law-makers being in all cases the ultimate object sought in construction. Looking for the use of the word in a legal sense, we find it given in 7 Am. & Engl. Enc. of Law, 661, as meaning “ something more than untrue; it means something designedly untrue, deceitful, and implies an intention to perpetrate some treachery or fraud.” In Abbott’s Law Dictionary, 478, under the head “ false,” it is stated: “ In the more important uses, in jurisprudence, of false and falsely, they usually import somewhat more than the vernacular sense of erroneous or untrue. They are oftenest used to characterize a wrongful or criminal act, such as involves an error or untruth, intentionally or knowingly put forward. A thing is called false when it is done, or made, with knowledge, actual or constructive, that it is untrue or illegal; or is said to be done falsely when the meaning is that the party is in fault for its error.” Putnam v. Osgood, 51 N. H. 192, gives construction to a statute rendering void, as against a subsequent attachment, the lien of any pledgee or chattel mortgagee who, on the officer holding the process demanding a statement of his account, renders & false account. The opinion by Chief Justice Bellows, is full, well reasoned, and instructive. The holding is that such “ account is not necessarily false within the meaning of the statute, because, by mistake, it is made greater than the amount really due, provided the account is rendered in perfect good faith, and with all reasonable efforts to make it just and correct.” For applications of like definition as applied to the term “ false swearing ” in insurance law, see Maher v. Hibernia Insurance Company, 67 N. Y. 283; Franklin F. I. Company v. Updegraff, 43 Pa. St. 350; Franklin Insurance Company v. Culver, 6 Ind. 137; Marion v. Great Rep. Insurance Company, 35 Mo. 148; Mason v. A. M. A. A., 18 Up. Can. (C. P.) 19; and for full discussion of the question generally, see Derry v. Peek, 14 App. Cases (H. of L.) 337.

If we say that a statement which is simply not true, and which does not show design or culpable negligence, is false within the meaning of this statute, then it would seem to follow that the state has done that which is most unusual, to wit: prescribed a punishment in the nature of a penalty for an act of omission, which is but an innocent mistake on the part of the citizen. For, according to the terms of the section, the penalty of fifty per centum to be added by the auditor, necessarily follows the finding by him that the return made was a false return, or that the making of a return has been evaded. He “ shall for each year ascertain..... the true amount .... such person ought to have returned or listed.....and to the amount so ascertained he shall add fifty per centum,” etc. There is no discretion. The true amount of the property being found, the penalty is added with the same certainty that the tax itself is entered. Genin v. Auditor, 18 Ohio St. 534.

We are considering the language with a view of ascertaining the bearing of the section, taken as a whole, upon the meaning of the word “ false.” It has been held in Gager v. Prout, decided at this term, that as to years .prior to the amendment of the statute, the tax itself could, in a proper case, be collected, but that the penalty could not be added. In other words, the penalty clause was separable from the remainder of the act. This did not read the penalty clause out of the statute. To put a proper construction on the act, to ascertain the meaning of the legislature, it is present to every intent and purpose, for “ the rejection of some of the provisions of a statute for unconstitutionality, will not vary the sense or meaning of its remaining provisions.” State v. Dumbaugh, 20 Ohio St. 174. The words of .the entire section, therefore, are to be considered. The law was intended to be permanent. That vice which is necessary to make a return false at one time is necessary at all times, and no different test can be applied in a case which involves taxes for years prior to the amendment of 1886, than to a case arising after that date. It follows that, whatever is a false return as to the penalty is a false return as to the tax without the penalty, and vice verm.

That the word “ false ” is used in a sense other than merely untrue finds support by a consideration of the context. The section includes as well those who “ shall evade making a return ” as those who “ make a false return,” and the maxim nosdtur a sociis is invoked. True, it is urged that the word “ evade ” here is synonymous with “ omit,” and hence gives color to the opposite construction. This, we think, is Avholly inadmissible, for the word, comparing the definitions of lexicographers, scarcely admits of any meaning, when applied to the act of a person, which does not involve a perverse or sinister element. We conclude that “ evade,” as here used, means to avoid by effort or contrivance. If we are correct as to this meaning, its use in conjunction with the word “ false,” has an important bearing upon the sense intended by that word, and tends strongly to the conclusion that “ false ” implies design, for it is difficult to conceive that the legislature would intend to impose a severe penalty upon one who, by an innocent oversight, omitted a portion of his property from his return, and at the same time wholly excuse another who omitted to return any property at all. And yet this certainly follows if a return erroneous, without fault is a “ false return.”

In Insurance Co. v. Cappellar, 38 Ohio St. 560, the company disclosed the real facts to the auditor by returns on the blanks furnished, but deducted its re-insurance fund as a debit from its credits, and returned the balance for taxation. The auditor proposed to correct these returns under section 2781, for five years, and the suit was to enjoin this proposed action.

As made by the company, the statements were unquestionably erroneous. The claim was made in argument by the learned attorney-general, that the returns were false, and he argued as is urged here, that the word “false ” meant “not truethat the returns did not comply with the statute, and hence were “ false.” This was denied by counsel for the company, (now one of the eminent counsel for defendant in error in this case), who contended, as is here contended, that the returns were not “false,” inasmuch as there was no concealment, or intentionally false statements, and that the returns showed every item, and the auditor had full knowledge of their character. The information as to ownership was given the auditor on the returns; in the present case like information was given by the taxpayer verbally. The court held that the returns were not false within the meaning of the statute, and confined the judgment to the amount due as taxes for the current year, without penalty.

It is insisted that in section 2782, the term “ false statement ” is used as meaning simply a false or incorrect statement, as held in Champaign County Bank v. Smith, 7 Ohio St. 42, where the language of section 46 of the act of 1852 (now incorporated into section 2782) is construed. And, as a result, it is claimed that a like signification must be given to like language in section 2781, on the principle laid down in Rhodes v. Weldy, 46 Ohio St. 234, that “ where the same word or phrase is used more than once in the same act in relation to the same subject-matter and looking to the same general purpose, if in one connection its meaning is clear and in another it is otherwise doubtful or obscure, it is in the latter case to receive the same construction as in the former, unless there is something in the connection in which it is employed, plainly calling for a different construction.” A full analysis of section 2782 is not necessary to the point we make. It is apparent on the surface that there is not full identity of subject-matter in the two sections, nor is the connection in which the term stands in one the same as in the other. In 2781, it is used, in effect, as the equivalent of “evade;” in section 2782, it is used apparently in contrast with “evade.” There is, therefore, manifestly, something in the connection in which the language is employed in section 2781, “plainly calling for a different construction.” And while the general subject-matter is the same, a special subject-matter, to wit: penalty, is present in one section and absent in the other. The two sections were originally passed at different dates, and were intended to accomplish, in part, different results. One is intended solely for the correction of errors, from whatever cause arising, the taxpayer being liable for more than simple taxes only in case it is shown that the return was made with intent to evade the payment of taxes, and that liability being for costs of correction only; the other to correct false returns only, and impose a severe penalty upon those who make them, thus punishing the wrongdoer and serving as a warning to others.

It is not doubted that the legislature had full authority to provide for an inquiry into past years, and to prescribe such conditions, as, in its wisdom, seemed proper for Sscertaining and placing upon the duplicate, taxes omitted to be returned for any cause, and there certainly would be no inequity, as between the state and the citizen, in opening up settlements for periods prior to the current year upon the ground of mere mistake. Such policy would but place the state in the same attitude towards its citizens as it places citizens in towards one another. But, had such been the purpose of the legislature, it seems natural to expect that that body would have employed plain, unequivocal terms, words admitting of but one meaning, and clearly expressive of the precise purpose intended. Our language is not lacking in words adequate to the expression of exact ideas. As we have already seen, the word “ false ” has a legal meaning, and we would suppose that if the legislature intended to use it in a more general sense, such intention would have plainly appeared by the context. Stephenson v. Higginson, 3 H. L. Cases 686. The terms of the entire section, however, not only do not clearly indicate a purpose to provide for correction of errors in returns for past years for mere mistake, but, while admitting of dispute as to the real meaning, nevertheless, tested by ordinary rules, as applied to a statute where a penalty or forfeiture is imposed, fairly imply, as we think, a purpose to limit such corrections to cases where the taxpayer is shown to have been in fault; and the courts have no other duty than to give effect to that language.

An examination of the cases upon the proper construction of tax laws, cited by defendant’s counsel, fails to impress us that the conclusion of counsel is correct. The cases go to the extent of holding that revenue statutes are not to be regarded as penal, and therefore to be construed strictly, but are remedial in their character, and to be construed liberally to carry out the purposes of their enactment. This need not be disputed. But we discover no inclination in any of the decisions of the Federal courts to impose the penalties of the United States revenue laws upon the innocent. Indeed, the . purpose seems to be to refuse to do so except where the language of the law will fairly admit of no other result. This is illustrated tn the case of U. S. v. Bbls. Spirits, 2 App. (U. S.) 305. The syllabus is: “ Reve’nue laws inflicting penalties for their violation, are not to be construed strictly, nor with excess of liberality; but in such a manner, looking at their policy, purpose, spirit, and language, as will best effectuate the legislative intention. The courts will not construe a law imposing a forfeiture, as extending to property which, before seizure, has been sold to a person innocent of the of-fence by which the forfeiture is incurred, and who has purchased in good faith, unless the intention of Congress that the forfeiture should be absolute and instantaneous on the commission of the offense, be manifest and unmistakable.”

Upon a consideration of the entire statute in the light of the authorities, and having in mind the purpose to be accomplished by this section, as heretofore held by this court, to wit: “not merely to afford a remedy for a recovery of wbat is due the state under its system of taxation, but also to secure honest returns by adding a penalty to the making of false ones,” we are led to the conclusion that, in order to be “ false ” within the meaning of section 2781, there must appear, if not a design to mislead and deceive, at least such culpable negligence in the making of a return as carries with it the consequences of intentional default. Culpable negligence may well be said to be present where a party, under obligation to make a true statement, states that which is false in fact, and which he has no sufficient reason to believe to be true. It is the duty of the resident property owner to return his taxable property for taxation. In the performance of this duty he must use diligence and care in acquiring knowledge from sources where information is obtainable. If he uses such care, and acts honestly, making his return in accordance with his best knowledge and belief, after using all reasonable means to obtain an intelligent belief, his return will not be false within the meaning of section 2781. But this belief must result from a careful effort to perform the duty. Blind reliance upon an indolent belief that one’s property is not taxable, without investigation, inquiry, or disclosure to the taxing officer, would show culpable negligence, as fatal to the claim of good faith and innocent purpose, as would a direct intent to deceive. With this construction we think the rights of both the state and the owner will be reasonably protected, and no injustice result to either paily. The citizen is held to a high degree of vigilance in the performance of an important duty, and yet is not visited with severe penalties by reason of an honest mistake. This conclusion is believed to be in harmony with the holdings in the following cases: Breitung v. Lindauer, 37 Mich. 217; Pier v. Hanmore, 86 N. Y. 95; Bonnell v. Griswold, 89 N. Y. 122; Wright v. Smith, 5 Esp. 203; Black v. Ward, 27 Mich. 191; and to be fully sustained by Del. Div. Canal Co. v. Commonwealth, 50 Pa. St. 399.

There is force, too, in the consideration that the duty to make proper return is not satisfied by a return honest when made, but attaches to the taxpayer to such extent that if, before the return has been finally acted upon by the taxing officer, the party obtains knowledge that his return is incorrect, he should voluntarily correct it by a supplemental return, and that a failure to do this is, within the meaning of this section, an evasion which would authorize the auditor to add the penalty for the current year. He knows that unless such correction is made, the auditor, except he have information from other sources, will act on a return which is untrue, and the failure to speak, under the circumstances, may be regarded, in its nature, sivppressio veri.

Applying these conclusions to the case before us, what should the judgment be ? From the findings of fact we learn that, prior to the second Monday in April in the year 1881, the defendant took advice of eminent lawyers as to the taxability of the stock in question, and received opinions from them that it was not taxable under the laws of Ohio. During that month he informed the then auditor of Hamilton county that he owned such stocks, and discussed with him the question of their taxability. ' From a period long prior to this date, the auditor and boards of equalization of the county declined to take steps to compel returns of persons who, they knew, owned such stock; which action was approved by the auditor of state, and no instructions to the contrary were given by that officer prior to November, 1886. This conclusion of the taxing officers was generally known in the county of Hamilton, and the belief was practically universal in the county, for the period stated, that such shares were not subject to taxation. These facts were known to the defendant, and honestly entertaining the belief that the shares were not taxable, and having no intent to evade payment of taxes, he omitted the shares from his returns. Such, in brief, are the facts as found by the trial court. If the conclusion before stated as to what is necessary to constitute “ a false return ” be correct, it must be manifest that these facts do not show that the returns were “ false.”

As to the returns for the years 1881 to 1885, inclusive, there seems, therefore, no real question but that the judgment below was right. As to the year 1886, there may possibly be room for doubt regarding the penalty. It is urged that if the return is true when made, it cannot be rendered false by what is learned afterwards. . Defendant’s return in April, 1886, was correct so far as it went. It did not include the railway stock. The trial court apparently thought there was evasion in not making voluntary correction. It was not necessary to find that the return itself was false. The court may have reasoned that, inasmuch as the defendant knew of the claim of the auditor shortly after November, 1886, that the shares ought to be returned, his failure to make voluntary correction was an evasion which rendered him liable to the penalty, and that his true disclosure, upon being cited some time afterward by the auditor, did not relieve him. The sixth finding of fact is consistent with this conclusion. This court is not prepared to say that the legal conclusion was erroneous.

The findings of fact further show that a number of the certificates representing stock owned by the defendant had been pledged as collateral security for loans, with power to the pledgees to cause a transfer of the stock to their own names, and, in case the loans should not be paid, to sell. It is insisted by defendant that such shares cannot be taxable in his name on the ground that they were not in his possession or under his control within the meaning of sections 2730, 2736 and 2737, Revised Statutes. We are of a contrary opinion. The books of the company showed the shares to be in the name of the defendant, and he was the real owner. He had the power to resume absolute control by paying off the indebtedness. It is not the policy of our law to assess taxes upon pledged property against the pledgee, and the language of the sections referred to will not, in reason, bear so literal a construction. Waltham Bank v. Waltham, 10 Met. 334; Tucker v. Aiken, 7 N. H. 113.

Other questions argued at length are rendered unimportant by reason of the conclusion reached on.the main question.

Acknowledgment is here made to counsel for their most thorough and elaborate argument of the case. The able briefs thorough and elaborate argument of the case. The able briefs have been freely resorted to in the preparation of this opinion, and have materially lightened the labor of the court.

Finding no error in the record the judgment is

Affirmed.  