
    Morrow, Receiver, v. Hess, Auditor.
    
      Taxation — Receiver to list moneys held only for distribution —Section 5372-1, General Code.
    
    Under Section 5372-1, General Code, providing that moneys in control of a receiver on certain date shall be listed and entered on tax lists in his name, receiver must list moneys in his hands, notwithstanding he has such for distribution only, and, if he fails to do so, county auditor may list the same.
    (Decided June 28, 1926.)
    Appeal: Court of Appeals for Hamilton county.
    
      Messrs. Nichols, Morrill, Stewart & Ginter, and Messrs. Peck, Shaffer & Williams, for plaintiff.
    
      Mr. Charles S. Bell, prosecuting attorney, and Mr. Sylvester Hickey, for defendant.
   Hamilton, J.

This action was brought by Thomas H. Morrow, receiver, to enjoin the county auditor of Hamilton county, Ohio, from listing certain moneys for taxation, which were in his custody as such receiver. The court of common pleas refused the injunction, and the receiver appeals to this court from that judgment.

In support of the claim for an injunction, it is argued, since the property is money in his hands for the purposes of distribution only, that as such receiver he should not be required to list the property for taxation, as it would be the duty of the creditors, who are entitled to the money on distribution, to list the same. The prosecuting attorney, for the defendant, presents Section 5372-1, General Code, and the accepted interpretation thereof, to justify the requirement that the receiver list the property.

Both counsel cite the cases of McNeill v. Hagerty, Aud., 51 Ohio St., 255, 37 N. E., 526, 23 L. R. A., 628, and French v. Bobe, 64 Ohio St., 323, 60 N. E., 292, in support of their respective claims. A reading of these two cases discloses that both counsel might reasonably derive some comfort therefrom in support of their respective contentions. The cases do not decide the question here. We must resort to our own interpretation of Section 5372-1 of the General Code for our decision. The pertinent part of that section is as follows:

“Personal property, moneys, credits, investments in bonds, stocks, joint-stock companies or otherwise in the possession or control of a receiver, on the day preceding the second Monday of April in any year, on account of any person or persons, company, firm, partnership, association or corporation, shall be listed by the person having the possession or control thereof and be entered upon the tax lists and duplicate in the name of such * * * receiver * * *."

Why there should be any question of the provisions of this statute, we do not understand. It is plain and explicit in terms, and under its express provision it is the duty of the receiver to list all moneys in his hands on the day preceding the second Monday of April in any year. The purpose for which it is held is not mentioned in the statute. To comply with the statute, the receiver should have listed the property in question, and upon his failure to do so the auditor is authorized by the statute to list the same. This is the provision of the statute, and to hold otherwise would be to judicially legislate.

The injunction will be denied, and the petition dismissed.

Petition dismissed.

Buchwalter, P. J., and Cushing, J., concur.  