
    Eliza Wetmore v. The State of Ohio.
    A sum of money certain, to be received annually, and at stated periods, is, within the meaning of the tax law of 1846, an annuity, unless the same be receivable as a pension, a salary, or as compensation for labor or services, subsequently to be performed.
    This is an appeal from the decision of the auditor of state,, taken to this court, under the provisions of the tax law of March 2d, 1846.
    The case made is as follows: Eliza Wetmore, the appellant, is a resident of the county of Franklin. John Rathbone, father of the appellant, devised and bequeathed to her certain property in the state of New York, which he directed to be placed at interest by his executors, the interest to be paid to her annually, and upon her death the principal sum to be divided among her children in the manner specified in the will. John Rathbone, jr., brother of the appellant, by his will divided his property for the purpose of disposition into forty parts or portions, five of which he devised or bequeathed to his executors, in trust for the appellant and her children, directing his executors to purchase an annuity of one thousand dollars per annum, for her benefit, and directing further that the balance of said portions, which should be left after said purchase, should be paid over to such of her children as should be living when the will should take effect.
    
      Subsequently an arrangement was made between the execu tors of the said John Rathbone, jr., of the one part, and the said Eliza Wetmore and her husband, Charles H. Wetmore, of the other part, by which it was agreed that the sum with which an annuity of one thousand dollars per annum for her use could be purchased, should be placed at interest in the State of New York, upon the same terms and in the same manner as is provided by the will of John Rathbone, the father, and the interest paid to her as therein provided. This sum was estimated at twelve thousand three hundred dollars and twelve cents. This arrangement was carried into effect, and the appellant is in the annual receipt of about eighteen hundred dollars as interest, in consequence of the bequests and arrangement aforesaid.
    Under these .'circumstances the auditor of Franklin county considered this annual income as in the nature of an annuity, and upon the tax duplicate charged the appellant with fourteen thousand seven hundred dollars, 'that being estimated to be the worth of an annuity of eighteen hundred dollars for the life of the appellant.
    From this decision of the auditor of the county an appeal was taken to the auditor of state, who, acting by and with the advice of the attorney general, affirmed the decision of the auditor of the county. From this decision of the auditor of state, the matter is brought before this court by appeal.
    
      Swayne $ Bates, for appellant,
    Contended that this was not an annuity; that the statute had made a substantial difference between an “ annuity ” and “ a sum of money receivable at stated periods,” and that annuities and certain ground rents were the only instances in which the law required such a valuation to be made as had been made in this case, and the tax to be assessed upon such valuation.
    
      Henry Stanbery (attorney general), for the state,
    Insisted that whether or not this annual income was strictly an annuity, according to the definitions found in the books, it was so within the meaning of the tax law, and that the mode of taxation adopted was correct.
   Hitchcock, C. J.

The question raised in argument, and the question to be decided is, whether under the laws of Ohio “ for levying taxes on all property in this state according to its true value,” (vol. 44, p. 65, Ohio Laws,) this annual income ■can be considered as an annuity. It is not contended that, according to the strict technical meaning of the words, it is an annuity, but the question is, whether it is such within the meaning of the law referred to.

The first section of the act provides “ that all property, whether real or personal, within this state, and the moneys and credits of persons residing therein, except such as is hereinafter expressly exempted, shall be subject to/taxation ; and such property, moneys and credits, or the value thereof, shall be entered ■on the lists of taxable property, for that purpose, in the manner prescribed by this act.”

In the next section the general assembly proceed to give the definition or meaning of the terms used in the act. In the 5th paragraph of this section, it is said, “ the term credits, wherever used in this act, shall be held to mean or include every claim or demand for money, labor or other valuable thing, due or to become due, and every annuity or sum of money receivable at stated periods, and all money invested in property of any kind, which is secured by deed, or mortgage, or otherwise, which the person holding such deed, or mortgage, or evidence of claim, is bound, by any lease, contract or agreement, to reconvey, release or assign, upon the payment of any specified sum or sums.” So far in this paragraph. There are three specifications as to what shall be held to be credits within the meaning of the act. 1. “ Every claim or demand for money, labor, etc., due or to become due.” 2. “ JSvery annuity or sum of money receivable at stated periods.” 8. “ All money invested in property of any kind, which is secured by deed, mortgage or otherwise;” no matter what is the form of the security, provided the security is to be avoided “ upon the payment of any specified sum or sums.”

Now if we look to the phraseology of this paragraph so far as quoted, and in connection with this we look to the punctuation, it would seem that the general assembly did not intend to make any difference between an “ annuity ” and á “ sum of money receivable at stated periods.” The form of expression is, “ every annuity or sum of money receivable at stated periods,” not “ every annuity and sum of money,” etc. They speak of both the “ annuity ” and the “ sum of money” as being one and the same thing. But the paragraph does not stop here. Immediately following the foregoing quotation is a proviso in the following words: Provided that pensions received from the-United States or any one of them, salaries or payments expected to be received for labor, or services to be performed or rendered, shall not be held to be annuities, within the meaning of this act.”

Now no one would suppose that a pension or a salary, although received at stated periods, was, according to the common use of language, an annuity. Yet the general assembly having, in the previous part of the paragraph, in defining what was to be deemed credits, specified “ every annuity or sum of money receivable at stated periods,” introduced the foregoing proviso, lest by possibility it might be thought that salaries and pensions were included as annuities.

In this proviso we are told what are not annuities within the meaning of the law. Placing this provision in juxtaposition with that part of the preceding paragraph which it is intended to qualify, it will stand thus : “ Every annuity or sum of money receivable at stated periods; Provided that pensions received from the United States or any of them, salaries or payments expected to be received for labor or services to be performed or rendered, shall not be held to be annuities, within the meaning of this act.” Such being the language used by the law-making power upon this subject, we cannot doubt that it was the intention to include within the terms or words annuity, every sum of money receivable at stated periods, except such as are ex eluded or excepted by the proviso. It could not have been the intention to charge a greater tax upon an annuity, properly so called, than any other sum of money receivable, like an annuity, at stated periods. Such discrimination would have been contrary to reason and manifest justice.

Such being the opinion of the court, it was proper to ascertain the value of this eighteen hundred dollars income, according to the provisions of the 12th section of the act.

The construction put by the auditor of state upon the act, is in accordance with the true meaning of the law; his decision is therefore affirmed.  