
    Hagerty, Auditor, and Leo Schott, Treas., v. Huddleston, Hubbard & Company.
    
      Taxes and assessments — Relief against illegal taxation — Record of board of equalisation not conclusive — Sections 6848 and 2740, Revised Statutes.
    
    1. The record of a board of equalization is not conclusive, but is only prima facie, evidence, in an action by a taxpayer under section 5848, Revised Statutes^ challenging the legality of a tax or assessment.
    2. H. H. & Co., being engaged in the live stock commission busi" ness at the city of Cincinnati, and live stock having been shipped and consigned by parties outside the state to the Union Stock Yards Company at said city, care of H. H. & Co., and upon arrival put into the yards by said Company, kept there, yarded, fed and watered by the company until sold by H. H. & Co., they having access to the stock by permission of the company to show the same to purchasers ; upon a sale being made they would give an order to the purchaser on the company, and upon receipt of such order the company would deliver the stock to such purchaser ; upon receiving the price of the sale, H. H. & Co. would retain their commission, and pay the company its charges for yarding, feeding and watering the stock, and remit the balance to the owner, said H. H. & Co., at no time having any control of such stock while in the possession of said company. Held: That such transactions did not constitute H. H. & Co., merchants, within the meaning of section 2740, Revised Statutes.
    (Decided April 25, 1899.)
    Error to the Circuit Court of Hamilton eounty.
    The action in the court of common pleas was for the purpose of enjoining the auditor from adding $12,000 valuation to the tax return of plaintiffs below, defendants in error, and to enjoin the treasurer from collecting the taxes on said amount.
    The court of common pleas decided the case against the plaintiffs below, and the case is reported in the 2 Ohio Nisi Prius Reports, 291. Upon trial on appeal in the circuit court there was a finding of facts and conclusion of law as follows:
    
      1. The plaintiff is a partnership composed of Thomas F. Huddleston, Charles R. Hubbard, ffm. A. Ragsdale and Ed. Y. Hauss, formed for the purpose of carrying- on business in the state of Ohio, and engaged in business in the city of Cincinnati; that the said firm has been engaged in business since a time prior to the year, 1893.
    2. The defendant, John Hagerty, at the time of the bringing of this action, was the auditor of Hamilton county, Ohio, and the defendant, Leo Schott, was at the time the treasurer of Hamilton county, Ohio.
    3. The plaintiff made a return for taxation, for the year 1893, ox its personal property, upon a certain printed form, furnished by the county auditor, containing the various items for the return of all moneys, credits, investments, and personal property of every kind subject to taxation under the laws of Ohio, one of which items was known as No. 10, and provided for the average value of all goods and merchandise owned or held as a merchant during the year or part thereof, from the day preceding the second Monday of April, 1893. The plaintiff made a return of its moneys, credits, and property, but returned no property for taxation as a merchant under said item 10.
    4. The plaintiff firm was cited to appear before the board of supervisors of the city of Cincinnati, sitting and acting as the city annual board of equalization, on the eleventh day of July, 1893, to show cause why an addition should not be made to the personal return of the plaintiff for the said year 1893. On said July 11, 1893, Mr. Charles R. Hubbard, one of the members of said firm, in response to the said citation, appeared before the said board, and was examined by the said board ■with reference to the business of the said firm, and his testimony so given was the only evidence presented to the said board on the hearing of such citation.
    5. The evidence, and the only evidence, submitted to the board, was this:
    The said firm of Huddleston, Hubbard & Company was engaged in the live stock commission business in the city of Cincinnati, and had its place of business at the stock yards in said city. The business of the plaintiff was required to be transacted at or near the stockyards. The Cincinnati Union Stock Yards Company is an incorporated company under the laws of Ohio, for the purpose of handling live stock and yarding the same. It is not engaged in the business of buying live stock and selling the same, either on its own account or on commission. Its business consists of feeding, yarding, and holding the stock for others, and it is near their yards where the business of the plaintiff is conducted. The owners of live stock within the states of Ohio, Kentucky, Indiana, Illinois, and Tennessee, in certain cases, send their live stock to the city of Cincinnati to be sold for them. In some cases, the owners bring the live stock, while, in other cases, the owners do not do so, but consign the live stock, as hereinafter set forth. When the owners come with their stock and arrive with it, it is taken in charge by the employes of the Cincinnati Stock Yards Company, as aforesaid, and placed in their yards by the said employes. The owner then goes to the office of the plaintiff, and notifies the plaintiff of the arrival of the stock, and authorizes the plaintiff to sell the stock for him, and deduct a commission and all yardage expenses for feeding, watering and keeping the stock, and remitting the balance. The owner accompanies the stock in about sixty per cent, of the sales made by the plaintiff from the stock yards. In the remaining cases, being about forty per cent, of all the sales by the plaintiff from the stock yards, the stock was shipped by the owner, consigned to the Cincinnati Union Stock Yards Company, care of Huddleston, Hubbard & Company. When the stock was so consigned, the owner would notify the plaintiff by letter or telegram, advising’ them of the shipping of the stock, and directing them to sell the same at a certain price, and informing them how to remit the proceeds of the sale. In such cases, after the arrival of the stock, the employes of the Cincinnati Union Stock Yards Company take charge of the same, and place it in their yards, as hereinbefore set forth, and notify the plaintiff of the arrival of the same. Thereupon, the plaintiff having been notified of their said arrival, in accordance with the instructions of the owner, as hereinbefore set forth, would make the sales of the stock in the same manner as herein-before described. The plaintiff has access to the stock, at all times, by asking the employes of the stock yards company to unlock the gates, which are kept locked to prevent the escape of the stock. The said company is required to deliver the same number of head which it received, upon receiving an order to do so, as hereinafter set forth. When the plaintiff makes a sale of the stock, it orders the Cincinnati Union Stock Yards Company to weigh the same, and deliver it to the purchaser, and the Cincinnati Union Stock Yards Company comply with the said order of the plaintiff. The plaintiff collects from the purchaser the amount of the sale, and deducts the charges which are due to the Cincinnati Stock Yards Company, for feeding, watering, and yarding the stock, and also its commission, and remits the balance to the owner. The .Cincinnati Union Stock Yards Company claim a lien on all stock placed in their yards for their charges. Settlements are made by and between the Cincinnati Union Stock Yards Company and the plaintiff daily, for the business of the preceding day. Generally, the sales made by the plaintiff of said stock are for cash, or the check of the purchaser. If, however, the plaintiff is entirely convinced of the solvency of the purchaser, credit for a short time is occasionally given. In all cases of sales, upon the direction of the plaintiff, the Cincinnati Union Stock Yards Company delivers the stock to the purchaser, without ascertaining whether plaintiff has collected the money, and, when so delivering the stock, releases any lien or claim it has thereon, and looks to the plaintiff for the same. The plaintiff, in such cases, makes its settlement as is customary on the day following, whether payment has been made or not. In all cases of sales, whenever the plaintiff orders the stockyards company to deliver stock to the purchaser, it is weighed and delivered, and the plaintiff held responsible by the company for the charges. About two-thirds of the business of the plaintiff consists of dealing with stock sent, as aforesaid, from other states other than the state of Ohio. In case the stock so consigned to the stock yards company, in care of the plaintiffs, or that brought to the stock yards company by the owners thereof, was not sold by them (the plaintiffs), the same would then be shipped by said stock yards company, or the owners of the stock, without any direction or control of the plaintiff, to other markets indicated by the owner or consignor. The only duty conferred upon the plaintiff being to sell said property when consigned to the stock yards company in their care, or when brought by the owner, being to sell the same, if the price could be obtained, pay the charges and their commission, and remit balance of proceeds, as directed, and that, at no time, did plaintiff have any control of said stock while in the possession of the stock yards company. There was no evidence whatever before said board as to the average value of all goods and merchandise owned or held by plaintiff as merchants during the year, or part thereof, ending the day preceding the second Monday of April, 1893, or of the average value of goods, merchandise, or stock owned or held by them as merchants, or sold by them under the conditions hereinbefore stated, which had come to them- from any place within this state, or from any place out of this state, for the purpose of being sold at any place within this state, and no books or papers of said plaintiff were asked for or produced, showing the same, and no inquiry was made by the board of the plaintiffs, or either of them, as to such matters, and no evidence was heard in regard thereto by said board.
    6. The said annual board of equalization entered upon its minutes for the year 1893 the following:
    Office of the Board of Supervisors,
    Cincinnati, July 7, 1893.
    
      City Annual Board of Equalisation.
    
    The board met. Present, Messrs. Doherty, Krohn, Strunk and Mr. President. Messrs. Foley and Harper were absent, the former being ill and the latter engaged in inspection of new structures and examination of complaints.
    President Smith in the chair.
    It was moved and adopted that citations be issued for the following corporations, firms and individuals, to show cause why additions should not be made to the personal returns for 1893 of said corporations, firms and individuals. Said citations are returnable on dates specified.
    Citation 168, Huddleston, Hubbard & Co. Returnable July 11th, at 10 A. M.
    The board adjourned to meet Saturday, A. M., July 8, 1893.
    Louis Krohn, V. Pres.
    Attest:
    F. S. Armstrong, Secy.
    Office of the Board of Supervisors,
    Cincinnati, Ohio, July 11, 1893.
    
      City Annual Board of Equalization.
    
    Messrs. Doherty, Harper and Krohn met, with President Smith presiding, and approved as read the minutes of the last preceding meeting-. Mr. Foley was engaged elsewhere on official business.
    The following appeared in answer to citations, and the action as is recorded in each case was adopted by the board:
    Citation No. 168, Huddleston, Hubbard & Co. Chas. R. Hubbard appeared, was sworn and examined.
    Case continued.
    Office of the Board of Supervisors,
    Cincinnati, O., July 18, 1893.
    
      City Annual Board of Equalization.
    
    The board met with all members present, and President Smith presiding.
    
      The minutes of the last preceding meeting were approved as read. Citations having been issued and duly served for the following firms, to appear and show cause why additions should not be made to the return of personal property of each for 1893, the said firms appeared as is stated (in previous minutes), and were examined.
    The board having heard the evidence of said firms, as well as other evidence introduced, in each ease adopted the following resolution, by the following affirmative vote: Ayes- — Doherty, Foley, Krohn, Strunk and Mr. President.
    ‘Resolved, That the amounts set opposite the names of the following firms be added to their personal returns for 1893, under the items respectively stated, for the reason that in each case the amount returned in said item in the tax return was, as shown by their statements, and by other evidence brought before the board, and as found by this board, that much below the actual value of the property that should have been returned in said item.’
    The vote on each case separately being:
    Ayes — Doherty, Foley, Harper, Krohn and Mr. President.
    Citation 168, Huddleston, Hubbard & Company. Amount returned, $7,500. Added by B. of S., $12,000. Dup. 1893, $19,500. Add to item 10, $12,000.”
    7. The said annual board of equalization for the year 1893 added to the return of the plaintiff the sum of $12,000 under said item 10.
    The said addition was made by the said board under the provisions of section 2740 of the Revised Statutes, claiming that said amount should be added under item 10, as plaintiff was engaged as a merchant under said section, and on account of live stock sold by plaintiff, which live stock had been sent or brought to the Cincinnati market in the manner hereinbefore stated, from states other than the state of Ohio.
    If said plaintiffs, under the provisions of section 2740, were as merchants required to return under item 10 for taxation the average value of all the live stock billed to the said stock yards company, from any place out of the state of Ohio, and which was sold by the plaintiffs under authority given them by the owner or consignor, in the manner hereinbefore stated, and in addition thereto, all of the said live stock billed to said stock yards company from points out of the state of Ohio, and which was accompanied by the owner, and who merely employed the plaintiffs to sell the same, in the manner hereinbefore stated; the plaintiffs having no other ownership or control of said stock, then the addition made by the board of equalization to the return of said plaintiffs was not excessive. But if said plaintiffs were not required to return the same, then said addition was excessive.
    And the court further finds that no evidence was offered to said board on such hearing- as would justify the board in making said addition of $12,000, or any other particular sum, and that no evidence was offered in this court from which it could be determined what addition, if any, ought to have been made to such return by the said board.
    As a conclusion of law, from the facts hereinbefore found, the court finds:
    1. That section 2740 of the Revised Statutes is a constitutional and valid law.
    2. That the action of the board of equalization was arbitrary and unjust, and without sufficient evidence.
    3. That there was no evidence offered to said board on such hearing which justified or warranted it in making the addition of $12,000, or any other specific sum, to the personal return of said plaintiff, under item 10, as returned by them, or to said return; but, on the contrary, the said addition was arbitrary and unjust, and without evidence.
    It is theref ore considered, adjudged, and decreed by the court that the defendants, the auditor and treasurer of Hamilton county, Ohio, respectively, be, and they are hereby, perpetually enjoined from placing on the duplicate against the plaintiff the sum of $12,000 for the year 1893, and from collecting or demanding from the plaintiff the taxes upon said sum for the said year. Nothing herein contained, however, shall prejudice the right of the said board, if such right it has, or the auditor of Hamilton county, or of any other board or officer, on proper proceedings or evidence, to place upon the duplicate the average value of all goods or merchandise owned or held by the plaintiff as merchants during the year, or part thereof, ending the day preceding the second Monday of April, 1893.
    It is further ordered that the defendants pay the costs of this action. The defendants except to the findings of fact herein, for the reason that the same are against the evidence, and are contrary to the undisputed evidence, and are contrary to the undisputed evidence offered by the plaintiff, and there is no evidence to sustain the same. The defendants further except to said findings, for the reason that the same are not sufficient, and the court has not found all the facts involved in this case and necessary to the determination thereof. The defendants except to the conclusions of law, for the reason that the same are contrary to law, are not sustained by the findings of fact, are not sustained by the undisputed evidence of the case, and are contrary to the undisputed evidence of the plaintiff, and there is no evidence to sustain the same.
    The defendants further except to said conclusions of law, for the reason that the court does not set forth all the conclusions of law involved in the case and presented thereby and necessary to a determination thereof.
    And the defendants except to the judgment entered herein.
    Plaintiff excepts to so much of the findings of fact as are contained in item 5, and which purports to give the evidence of Charles R. Hubbard before said board, and item 6 thereof, for the reason that it is not finding a fact, but merely stating the evidence.
    A motion for a new trial was filed by the defendants below, which was overruled and exceptions taken. A bill of exceptions was allowed and filed, containing all the evidence. Thereupon the auditor and treasurer filed a petition in error in this court, seeking to reverse the judgment of the circuit court.
    
      Rendigs, Foraker <& Rinsmore, County Solicitors, for plaintiffs in error.
    Boards of equalization are independent tribunals created by the legislature for the purpose of assisting in carrying on an important branch of the government relating to the appraisement of property for taxation. Their authority is prescribed by the statute, and while acting within the scope thereof their conclusions are final, unless an appeal is provided by law. Their acts are judgments, which can not be reviewed by the courts, nor impeached for any reason, except fraud or want of jurisdiction. The sufficiency of the evidence upon which the act to warrant the judgment which they enter should not be considered by the court, for it is not within the province of the court to say that the evidence will not warrant the specific action based thereon. Wagoner v. Loomis, 37 Ohio St., 571; Stanley v. Supervisors of Albany, 121 U. S., 535; Olympia Water Works v. Thurston Co., 14 Wash., 268; Maish v. Arizona, 164 U. S., 599; McDonald v. Escanaba, 62 Mich., 555; Ex rel. Attorney-General v. Supervisors, etc., 42 Mich., 72; Mayor, etc., of N. Y. v. Davenport, 92 N. Y., 604; Bellinger v. Gray, 51 N. Y., 610; Moore v. Taylor, 147 Pa. St., 481; Ry. Co. v. Backus, Treasurer, 133 Ind., 625; The People ex rel v. Lots in Ashbey, 122 Ill., 297; Macklot v. City of Davenport, 17 Iowa, 379; Stewart v. Maple, 70 Pa. St., 221; Hughes v. Kline, 30 Pa. St., 227; R. R. Co. v. Smith County et al., 54 Texas, 1; Rhoades v. Cushman, Auditor, 45 Ind., 85; The Republic Life Insurance Co. v. Pollak, 75 Ill., 292; Porter v. R. R. Co., 76 Ill., 561; Ry. Co. v. Backus, 154 U. S., 421; San Jose Gas Co. v. January, 57 Cal., 614; Brooks v. Shelton, 47 Miss., 243; The People v. Goldtree, 44 Cal., 323. The text books support the same propositions: Cooley on Taxation, pages 422 and 748; Desty on Taxation, vol. 1, p. 498; High on Injunctions, section 493; 25 Am. & Eng. Enc. of Law, 261, and cases cited.
    In addition to the foregoing authorities, section 2807 of the statutes, conferring authority on boards of equalization, provides that they shall have the power to add to or deduct from the valuation of personal property, or moneys or credits of any person returned by the assessor or county auditor, or which may have been omitted by them, or to add other items upon such evidence as shall be ■ satisfactory to the said boards.
    The journal of the board is fully set forth in the evidence and the findings. It is sufficient under the statute, and no claim is based thereon. Fratz v. Mueller, 35 Ohio St., 397.
    The question presented is one of jurisdiction of the board, and the fact must appear that there was evidence of some kind on which the co'nclu-. sions were based in order to sustain such jurisdiction. But, if it should appear that the board had some evidence before it, which, in its judgment, was sufficient to warrant the increase that was made, the jurisdictional fact is thereupon determined, and the court should not set aside the conclusion of the board, because it disag-rees with its action. Ry. Co. v. People ex rel., 119 Ill., 182; Olympia Water Works v. Gelbach, 16 Wash., 482.
    
      Gideon O. Wilson; A. L. Ilerrlinger and A. M. Warner, for defendants in error.
    Counsel for plaintiffs contend that the action of the board of supervisors is final and conclusive; that their acts are judgments which cannot be reviewed by the courts nor impeached for any reason except fraud or want of jurisdiction. It seems to us that counsel for plaintiff entirely overlooks the fact that where a taxing board makes an addition wholly without evidence to sustain it, and in the face of positive evidence to the contrary, that said board thereby commits a leg-al fraud, and that courts of equity will always enjoin the enforcement of the collection.of a tax so illegally imposed. We are not, however, willing to admit that a court of equity will not interfere to prevent the collection of a tax unjustly imposed, even where fraud does not enter into the consideration.
    Defendants in error are not merchants under section 2740. The testimony of all the witnesses for the defendant in error who were engaged in the live stock commission business, viz.: Charles R. Hubbard, R. H. West, Louis Rabbenstein, was, that neither the defendants in error, nor any of the firms engaged in a like business at the Union Stock Yards, had possession of the live stock sold by them, nor was such live stock subject to their control, but that, on the other hand, the same was in the exclusive possession and control of the Union Stock Yards Company of Cincinnati. They further testified that the live stock was not consigned to them for the purpose of being sold, but that the same was consigned to the Union Stock Yards Company, and upon arrival was taken possession of by the Union Stock Yards Company; that they in no manner had any interest in said live stock, but were simply enployed as brokers to sell in other word as auctioneers to sell said property, and were paid for their service a fixed rate of commission, whether the stock so sold was sold at a profit or loss to the owner thereof. Cooley on Taxation, 2d ed., 21.
    The action of the board of supervisors was arbitrary, unjust and wholly without evidence. We submit that the action of the board of supervisors in making the addition of $12,000 to Huddleston, Hubbard & Co. ’s return, being wholly without evidence, must therefore of necessity be arbitrary and unjust.
    
      A court of equity will enjoin the collection of a tax imposed upon an addition unlawfully made. We submit that our Supreme Court has on several occasions had before it the identical question here submitted, and held in each case, that where the board acted without any evidence or knowledge of the' facts to support the addition, that it acted arbitrarily, and that a court of equity would enjoin the collection of a tax so imposed. Fratz v. Mueller, 35 Ohio St., 397; Wagner v. Loomis, 37 Ohio St., 571; Musser, Auditor, v. Adair, 55 Ohio St., 466.
    In view of the fact that section 5848, Revised Statutes, provides a remedy by injunction, and in view of the fact that the Supreme Court of this state has several times passed upon this question, we would consider it an imposition upon the court to cite it to the numerous eases to be found in reports of other states supporting this proposition.
   Burket, J.

Section 2740, Revised Statutes, was then as follows:

“Every person who shall own or have in his possession or subject to his control any personal property within this state, with authority to sell the same, which shall have been purchased either in or out of this state, with a view to being sold at an advanced price or profit, or which shall have been consigned to him from any place out of this state for the purpose of being sold at any place within this state, shall be held tobe a merchant; and when he shall be by this chapter required to make out and deliver to the assessor a statement of his other personal property, he shall state the value of such property appertaining to his business a.s a merchant; and in estimating- the value thereof he shall take as the criterion the average value of all such articles of personal property which he shall have had from time to time in his possession or under his control during the year next previous to the time of making such statement, if so long he shall have been engaged in business, and if not, then during such time as he shall have been so engaged; and the average shall be made up by taking the amount in value on hand, as nearly as may be, in each month of the next preceding year in which the person making such statement shall have been engaged in business, adding- together such amounts and dividing the aggregate amount thereof by the number of months that the person making the statement may have been in business during the preceding year; provided, that no consignee shall be required to list for taxation the value of any property, the product of this state, which shall have been consigned to him for sale or otherwise, from any place within the state, nor the value of any property consigned to him from any other place for the sole purpose of being stored or forwarded; provided, he shall, in either case, have no interest in such property, or any profit to be derived from its sale.”

• Defendants in error claim that their business as shown in the finding- of facts does not constitute them “merchants” as that term is defined in said section 2740. The plaintiffs in error claim that defendants in error are merchants within the meaning of that section, and this is the principal controversy in this case. It is, however, claimed by plaintiffs in error, that as the record stands, this point cannot be determined by the courts, for the reason that as the board showed by its record that it added the $12,000 to the return of the dofendants in error upon statements made by said defendants in error, and by other evidence brought before the board, and that the board found that the said return was that much below the actual value of the property that should have been returned in said item 10, the said record is conclusive, and that the courts cannot go behind that record and determine whether said addition was made legally or illegally, and that, therefore, the defendants in error have no standing in court to have the question as to whether they were merchants or not judicially determined.

That taxing officers and boards are not courts, and do not exercise judicial powers as courts, and that their actions are not judgments, seems so well settled since the case of Musser, Auditor, v. Adair, 55 Ohio St., 466, that nothing more need be said on that question here.

The valuation placed upon property by a taxing officer or board within the scope of authority conferred by law, when made in good faith, will be held and regarded by’ courts as conclusive of the value, unless it should appear that there was some gross mistake to the prejudice of the taxpayer. But when the complaint is not as to the valuation, but goes. to the extent of claiming that under the statute the taxpayer is notliable to be taxed at all, under the peculiar circumstances of the case, that is that the tax is illegal, then the determination of the taxing officers and boards is only prima facie, and under section 5848, Revised Statutes, full jurisdiction is conferred upon the courts of common pleas and superior courts to enjoin such tax as illegal. All taxes and assessments in this state are levied and assessed by officers and boards subject to the test of legality by the courts, and when found illegal they will be enjoined. The legal effect of this statute is to protect the rights of the citizens in every case, as completely as if the right of appeal should be given from the taxing officers to the courts direct. The right of the citizen to test the legality of a tax or assessment under section 5848, cannot be taken away by any record that can be made by a taxing officer or board. The right is given to all to have the final test as to the legality in the courts, no matter what record may have been made by the taxing officers and boards. When the power to tax in any'particular case is challenged, the citizen has the right to be heard in court as to the legality of the tax, but when the power to tax is conceded, and the complaint is only as to the valuation, a valuation made in good faith and according to the best judgment of the taxing officer, will not be disturbed by the courts in the absence of gross mistake.

Again, in the case of Gager v. Prout, 48 Ohio St., 89, this court held as follows: “Proceedings had before a board of equalization cannot be pleaded as an adjudication in bar of proceedings before a county auditor for the correction of returns under the provisions of sections 2781 and 2782, Revised Statutes.”

As the proceedings evidenced by the record of the board of equalization are not conclusive as against proceedings by the county auditor for the correction of returns as to the same property, they cannot f>e conclusive as to proceedings in court for the correction of such returns by injunction under section 5848, Revised Statutes, because it is well settled in this state that the proceeding's of a county auditor are not final, but may be inquired into in an action for an injunction under said lqc tion 5848, and it would indeed be strange if the result of the proceedings of the board of equalization could be overhauled by the county auditor under sections 2781 and 2782, and then his proceedings could be overhauled by the courts under section 5848, but that the proceedings of the board of equalization when attempted to be inquired into by the courts under the same section, would be found to be conclusive. Such inconsistencies and contradictions cannot be tolerated. The proceedings and record of a board of equalization, and the proceedings and record of a county auditor under sections 2781' and 2782, stand upon the same footing, and neither is conclusive when challenged in a proceeding under section 5848. In such proceedings under section 5848 the record of the board of equalization is only prima facie, and upon the trial in court the burden is upon the plaintiff to show by evidence that the tax in question is illegal, and the defendants may show by their evidence that it is legal, and the issue thus made must be decided by the court upon the weight of the evidence as thus introduced by the parties, the record of the board being regarded as prima facie, but not in any sense conclusive. This results from a proper construction of our taxing and procedure statutes, and finds some support in the case of Fratz v. Mueller, 35 Ohio St., 397.

It therefore follows that the record of the board in this case does not conclude the defendants in error, and this brings us to the question as to whether or not they were merchants within the meaning of said section 2740. It is clear that the defendants in error did not own the live stock, and that the same was not in their possession, because it was owned by the shippers, and was in the possession of the stock yards company.

Had the defendants in error such control of the live stock as to make them merchants under said section? We think not. When the owners accompanied the stock it went to the stock yards before defendants in error knew of its existence. When the owners did not accompany the stock, it was shipped and consigned by them to the stock yards company, care of defendants in error, and they were notified by letter or wire, and the stock upon arrival was taken in charge at once by the stock yards company without any order from, or control of, defendants in error. The stock being thus in the possession of the company in its yards, whether accompanied by the owners or shipped and consigned by them, the defendants in error had the naked power of sale for the owners as their agents, and to that end had “access to the stock at all times by asking the employes of the stock yards to unlock the gates which are kept locked to prevent the escape of the stock.” This access was only for the purpose of making sales, and not for any general control. Purchasers would necessarily desire to see and inspect the stock before purchasing, and such access was a necessary part of the sale, and was not a control of the stock within the meaning of the statute; After a sale was made the defendants in error would give an order to the purchaser, and upon presentation of such order, the company would deliver the stock to such purchaser. The order was a part of the sale, and not a control of the stock, and was given only after a sale was made; and what the company did in honoring- the order was done for the purchaser, and not for the brokers. The payment of charges for feeding, watering and ■yarding, and the retaining of commissions, were all after the stock had been sold and disposed of, and did not appertain to the control of the stock. In fact the court finds that “at no time did plaintiffs have any control of said stock while in the possession of the stock yards company.’'

Again, to bring the defendants in error within the statutory definition of a merchant, it should appear either that they purchased the live stock, or that it was consigned to them. All concede that they did not purchase it, and the finding of facts shows that none of it was consigned to them. The consigmments were to the stock yards company, care of defendants in error. Such a consignment is to the stock yards company, and not to the brokers. The finding of facts shows that in due course of business under such a consignment, the live stock went direct to the company’s yards independent of any order or control from defendants in error, and that such a consignment was regarded and treated by all as a consignment to the stock yards company alone, and we think that in legal effect such was its character.

With these holdings it follows that the defendants in error were not merchants, and that they were not liable to be taxed as such, and that the tax as to the $12,000 addition to the returns, was illegal. Having arrived at this conclusion, the question as to the constitutionality of section 2740 is immaterial, and we therefore express no opinion upon it.

Judgment affirmed.  