
    Gager, Treas., v. A. W. Prout et al.
    
      Constitutional law — Retrospective laws — Section 2781, Revised Statutes, construed — Taxation—Correction of false returns — Proceedings by County ■Auditors.
    1. A retrospective statute, remedial in nature, that is, giving a new remedy for the enforcement of an existing right, is not repugnant to the provision in our constitution inhibiting the passage of retroactive laws. Rairden v. Holden, Adm’r, 15 Ohio St. 207.
    2. Section 2781, Revised Statutes, as amended April 14, 1886, in so far as it authorizes the county auditor to make additions of taxable property, omitted by the owner in his returns for previous years, being simply remedial, is not invalid. As to the penalty required to be added for such years, it is otherwise, but being separable from the other provision, and in no way essential to it, may be disregarded without affecting the validity of the statute in other respects.
    8. Proceedings before a county auditor for the correction of false returns made by the owner of taxable property, are not governed by the precise rules of the Code of Civil Procedure, regulating the commencement and prosecution of civil actions. No particular style for the proceeding, or form of notice, is prescribed, and it is sufficient if the notice fairly informs the parLy of the nature of the proceeding and the capacity in which he is required to appear and answer.
    4. A certified copy of the inventory of the estate of a deceased person filed by the executor in the probate court, is competent evidence to show omissions in the returns of the deceased, and, in the absence of anything to the contrary, may warrant the auditor, in making additions.
    5. 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.
    6. Where additions have been made to the returns of a deceased person, on notice to üie executor, the treasurer is not required to formally present the amount of the taxes for allowance, before bringing suit for the same.
    (Decided February 24, 1891.)
    
      Error to the Circuit Court of Erie County.
    This was a suit brought in the Court of Common Pleas by the treasurer of Erie county against the executors of Mary Barney, deceased. It is averred in the petition that taxes to the amount of $4,703.81 stand charged on the tax-duplicate of Erie county against Mary Barney, deceased, late a resident of the county; that about April 11,1889, the plaintiff presented the defendants a statement of the amount for allowance which was refused by them; that the taxes remain unpaid, and'judgment is asked for the amount.
    The issues were made up by an amended answer and reply, which are as follows :
    “Amended Answer.
    “ Now come the defendants, and leave of court having been granted them for said purpose, for their amended answer herein, admit they are the duly qualified executors of the last will of Mary Barney, deceased, and deny each and every other allegation in said petition contained.
    “ And as a defense number one (1), they say, first, that no claim was ever exhibited to the defendants as executors for the amount claimed in the petition for allowance or payment as required by law. Second, if there appears on the tax duplicate of Erie county, taxes to the amount of $4,703.81 charged against Mary Barney, late of said Erie county, deceased, the same was placed there by the officers without any authority of law.
    “ Defendants were never notified by the auditor of Erie county before such entry on the tax list and duplicate was made. That the auditor of Erie county did not file in his office a statement of the facts upon which he made such addition and correction. That the auditor did not certify to the treasurer the said tax to be put on the duplicate as required by law, and hence the treasurer had no authority to put the same upon the duplicate, nor to collect the same from these defendants.
    “ That the auditor in making said addition did net call before him any testimony, nor was any evidence offered to show that such corrections or additions ought to be made, and such additions were made without any evidence whatever, and were, and are fraudulent and void.
    “ And as a second defense, defendants say:
    “ That such additions upon the duplicate which are alleged in the petition to the amount of $4,708.81 is in fact made up of the following sums and amounts, to wit:
    “For the year 1884,.....$16,500
    “For the year 1885,..... 20,500
    “ For the year 1886,..... 17,000
    “ For the year 1887,..... 24,000
    “ For the year 1888,..... 33,000
    “ And to the amounts above given for the years 1886, 1887, and 1888, 50 per cent, was added as penalty, making the amounts of property as added to the duplicate for those years as follows, respectively:
    “ For the year 1886,.....$25,500
    “For the year 1887, ..... 36,000
    “ For the year 1888,..... 49,500
    “ That the statute under which the auditor claims to have authority to make such additions was enacted by the general assembly on the 14th day of April, 1886, and was, and is unconstitutional and void.
    “ And as a third defense defendants say that at the time when the returns of personal property were made for taxation for the said years above named, Mary Barney was in full life and returned her property, and all of it, for taxation, and that during each of said years an annual board for the equalization of real and personal property, in the city of San-dusky, which is a city of the second class, equalized the value of the real and personal property, mone}rs and credits within said city, and added to and deducted from the valuation of all personal property, moneys and credits returned by the assessors therein, and which were omitted by said assessors, and heard evidence for the purpose of adding other items omitted from said returns, and that in each of said years the said Mary Barney was notified to appear before said board, as was required by law; and she did appear in person or by her duly authorized agent.
    “ And testimony was heard bearing upon her returns of personal property, and her returns of personal property were duly passed upon by said board, and the amount and value of her personal property was equalized by said board, and all questions arising upon or under the same were heard by said board, and by them fully settled and adjudicated.
    “ Wherefore defendants say that by reason of such adjudication the auditor of Erie county had no jurisdiction to add, either with or without evidence, any sum whatever to her returns, or to the tax duplicate against her on her estate, and that the attempt by him to do so is an attempt to pass upon and determine precisely the same questions that were passed upon and determined by the rify board of equalization of the city of Sandusky, acting within their authority and power.
    “ Amended Reply. '
    “Now comes the plaintiff and for reply to the first defense in said amended answer set forth, denies each and every allegation-therein contained, except that there appears on the tax duplicate the sum of $4,708.81 charged against Mary Barney, late of said Erie county, deceased.
    “ For reply to second defence of said answer, plaintiff admits that said amount, $4,703.81, standing charged upon the tax duplicate of Erie county, as alleged in the petition, is in fact made up of taxes upon the amounts and for the years alleged in said answer, and that in making up such amounts for each of the years 1886, 1887 and 1888, as required by law, fifty per centum penalty was added, making the total amounts for those years as alleged in said answer. And plaintiff says that said amounts were duly ascertained and entered by the auditor of said Erie county upon the lists, in his office, and duly assessed for taxation and certified to the county treasurer for collection upon evidence heard by him, said auditor, after notice of said hearing duly served upon the defendants herein, prior thereto, and which notified them of said hearing to be had, and gave them ample time and opportunity to appear and be heard in their own behalf and produce evidence, if any they had, and to show that the returns for taxation of said Mary Barney for each and any of those years were correct, which they failed to do, and were in default, and said auditor thereupon, upon the evidence before him, a statement of which facts or evidence was duly filed by him in his office as required by law, ascertained and found that said Mary Barney, now deceased, in the year 1884 was the owner of personal property, money, credits, investments in bonds, stocks, etc., which had not been returned for taxation by her in the sum of $16,500 ; in 1885, in the sum of $20,500; in 1886, in the sum of $17,500; in 1887, in the sum of $24,000; and in 1888, in the sum of $33,000; and entered his finding and judgment accordingly, and the plaintiff now pleads the proceedings of the auditor upon the notice to the defendants as aforesaid and his findings and judgment, as an adjudication of the matter herein, and as in bar to the defenses herein pleaded. Plaintiff further denies the allegation that the statute under which the auditor proceeded was and is unconstitutional.
    “For reply to the third defense, plaintiff admits that for the years above named, the said Mary Barney was in full life, and also admits that for said several years a board of equalization of real and personal property was in session in the city of Sandusky which is a city of the second class. Plaintiff denies each and every other allegation in said third defense.”
    The case was tried to the court upon the pleadings and the evidence; at the close of which, as appears from a bill of exceptions taken at the trial and made a part of the record, the court, upon consideration, being of the opinion that the statute, that is to say § 2781 Revised Statutes, as amended April 14, 1886, is unconstitutional, dismissed the petition, to which the plaintiff excepted at the time. Upon proceedings in error the judgment was affirmed by circuit court, not, as appears from the opinion of the court, that the law is invalid, but because the proceedings by which the additions were made in the auditor’s office, were, as claimed, against Mary Barney, and not against her estate.
    The bill of exceptions contains all the evidence and the proceedings at the trial.
    In addition to the ground on which the common pleas dismissed the petition, and that on which the circuit court affirmed the judgment, the following objections are also made to the right of the treasurer to recover:
    
      First. — That there was no presentation of the claim to the executors for allowance.
    
      Second. — That there was no evidence before the auditor to sustain the findings made.
    
      Third. — That the claim that Mary Barney had omitted taxable property from her returns had been heard and passed upon by the board of equalization of the city of Sandusky, and was therefore adjudicated.
    The facts, other than these already stated, requisite to an understanding of the questions discussed, are stated in connection therewith in the opinion.
    
      John P. Stein, L. Q. Cole, Wm. L. Avery, and ForaJcer, Black BocJchold, for plaintiff in error.
    The executors of Mary Barney were answerable for her defaults; but not personally, only out of her estate. For them to be answerable out of her estate, she must first have been charged. But how was she to be charged with taxes unless they were against her. We are to tax the dead, then ? By no means! Mary Barney was not dead in these years for which she is taxed. But you are taxing her now for them. Precisely! And since it is for then, must it not be in her name? That was the name in which the taxable property was owned then, and in which name it ought to have been returned and taxed. The omission to return it did not change the nature of the obligation. Revised Statutes, section 2781; State ex rel. v. Raine, 24 Law Bull. 117; County of Redwood v. Winona, etc., Land Co., 40 Minn. 517; Sturges v. Carter, 114 U. S. 518; Burroughs on Taxation, sec. 93; City of New Orleans v. Railroad Co., 34 La. Ann. 
      679; Harwood v. North Brookfield, 130 Mass. 561, 564; Noyes v. Hale, 137 Mass. 266, 271—2; Vanderpool v. Bonnell, 49 N. J. Law, 317, 321; Welty, Law of Assessments, sec. 60; Pearson v. Creed, 69 Cal. 538; Sawyer v. Mackie, 149 Mass. 269; Trowbridge v. Horan, 78 N. Y. 439, 442; Haight v Mayor, 99 N. Y. 280, 284; Cook v. Leland, 5 Pick. 236; Wood v. Torrey, Adm’r, 97 Mass. 321, 323; Endicott v. Corson, 50 N. J. Law, 381; Revised Statutes 1095, 1097, 2859; Dallinger v. Davis, 149 Mass. 62; Williams v. Holden, 4 Wend. 223; Wolfe, Ex’r, v. Geffroy, Treasurer, etc., 16 Ohio St. 219; Genin’s Executor v. Auditor and Treasurer, 18 Ohio St. 534.
    11. The manner of the charge accorded with the construction controlling the name; that is to say, the omitted values were restored, each for its own year, to the tax list of that year, as being where such values should have been originally but for the omission to return ; and were placed likewise upon the same duplicates in the hands of the treasurer that the taxes would have been on as unpaid taxes; in other words, upon “the delinquent chattel duplicate of delinquent chattel taxes of Erie county.”
    Against this manner of charge, much clamor has been heard elsewhere. Your duplicate, it is exclaimed, has been settled by the treasurer — it is “ dead.” But it was not more dead than any other account that has been settled; that is, it was dead only so long as not opened up. The very remedy provided by the statute, sections 2781, 2782, was to open it up, “ to go behind the annual adjustment made of the taxes by the auditor with the tax-payer; ” to afford “ a method by which the taxes might be assessed in spite of the annual settlements made by the auditor.” Sturges v. Carter, 114 U. S. 518.
    The tax list and duplicate are but accounts of taxes, in the offices of the county auditor and treasurer, with the tax-payer; the list being the original charge and the duplicate being a copy, the collections upon which, by the treasurer, are settled for by him semi-annually, each fiscal year, with the auditor. Until the act of May 2,1877 (74 Ohio L. 156), there was no provision for a separate duplicate of unpaid personal taxes. These appear to have remained to be collected by the treasurer upon his original duplicate. (S. & C. 1467, 1468, secs. 85-91.) The act of May 2,1887, substituted the delinquent chattel duplicate. Allen v. Russell, 39 Ohio St. 337, 338; Shotwell v. Moore, 45 Ohio St. 632; Lee v. Sturges, 46 Ohio St; 153; Sturges v. Carter, 114 U. S. 511; Welty Law of Assessments, section 159; Insurance Co. v. Cappeller, 28 Ohio St., 560; State ex rel. v. Raine, supra; Endicott et al. Ex’rs v. Corson, Collector, etc., 50 N. J. Law, 381; Stockle v. Silsbee, 41 Mich. 615, 618; Morrison v. Ry. Co., 96 Mo. 602, 606-8; State ex rel. v. Rau, 93 Mo. 126, 129; Farrington v. N. Eng. Invest. Co., 45 N. W. Rep. 191; Ry. Co. v. Johnson, 108 Ills. 11, 14; Jenkins v. McTigue, 22 Fed. R. 148.
    III. The treasurer made out a statement of the years and amounts of the addition, and the taxes for each jmar, footed up with the “ treasurer’s penalty for collection,” five per cent., making the total sum sued for; and addressed the statement to the executors — “ Gentlemen: There has been added to the tax duplicate against the estate of Mary Barney, omitted taxes as follows.” This he presented. Harter v. Taggart’s Ex’rs, 14 Ohio St. 122, 127-128; Kyle’s Adm’r v. Kyle, 15 Ohio St. 15, 21; Stambaugh v. Smith, 23 Ohio St. 584, 594; Pepper v. Sidwell, 36 Ohio St. 454, 457.
    IY. That the inventory was evidence, is denied. As if the admission of a defendant was not always evidence. That the memorandum was evidence, is also denied. But it did not purport to be a statement of the evidence. All that the statute requires the auditor to file is “ a statement of the facts or evidence.” The dates and amounts, and volume and page of record, of the mortgages as in the memorandum, with the dates of cancellation, were facts. The evidence was by certified copy, or direct inspection of the records; but the auditor was certainly not required to file the records. Fratz v. Mueller, 35 Ohio St. 397, 403.
    The whole objection, however, is based upon a misconstruction. Defects of evidence before the auditor, were there any such, are not to be questioned here; the defendants have had their day in court before the auditor. The function discharged by the auditor, in ascertaining the omitted values, was that of an assessor. Originally it was prescribed, that, “if any person shall fraudulently omit to give in any part of his or her property, it shall be the duty of the lister (or, as subsequently named, ‘ assessor ’) to take a list of such person’s property thus refused or omitted to be listed, from the best information he can obtain.” Acts, February 27,1816, section 4, Chase, 986; February 23, 1824, sec. 7, Chase, 1372; February 3, 1826, sec. 28, Chase, 1476; March 14, 1831, sec. 15, Chase, 1804. Under each of these acts notice was provided for, and opportunity to be heard before the county commissioners, or as afterward, the board of equalization; and, if not proved to be innocent in the premises, the person was taxed threefold, or by the earlier of the acts fourfold; but if the board were satisfied that the omission was not with fraudulent intent, the property was taxed the same as other property. The act of March 2, 1846 (44 Ohio L. 98), relieved the assessor of this duty, and left it unprovided for until the amendment of February 8,1847 (45 Ohio L. 60). 50 Ohio L. 135; Swan Revised Statutes, 901; Act of April 13,1852, secs. 26, 27; Revised Statutes, secs. 2750, 2751, 2782,2784; Champaign Co. Bank v. Smith, 7 Ohio St. 42, 49; sec. 1, S. & S. 759; 75 Ohio L. 436; Genin's Ex'r v. Auditor, 18 Ohio St. 534; Fratz v. Mueller, 35 Ohio St. 397, 404; Weatherhead v. Town of Guilford, 19 Atl. R. 717, 718; Town of Hartford v. Champion, 54 Conn. 436.
    V. The equalization of an assessment is but part of the assessment, and can no more be a bar to correction by the auditor of “ false return or statement for taxation ” under the statute, than is the original assessment, by the auditor himself, upon the returh, a bar. If it were, the singular consequence might happen, of the statute being altogether avoided, simply by repetition of the offense — that is to say, hy going before the board of equalization and repeating there the same false statement as in the return. The board of equalization, itself, is not exhausted of its own power by one exercise. Welty, Law of Assessments, sec. 153; Cent. Pac. R. R. Co. 
      
      v. Placer County, 46 Cal. 668, 671, 672. The doctrine of •“ res adjudicata does not apply to their proceedings.” (Id.) Or if it does, the precise matter must be shown to have been before them, as in whatever other claim of estoppel. County Redwood v. Winona and St. Peter Land Co., 40 Minn. 512, 517.
    For brief of counsel for plaintiff in error, on the question of the constitutionality of the act of April 14, 1886, see case of State ex rel. v. Crites, post. — [Reporter.]
    
      Colver f King for defendants in error.
    I. There was no valid presentation of this claim by the treasurer, for allowance, as required by sections 6092, 6098 and 6097; Keenan v. Sexton, 13 Ohio, 41; Harter v. Toggart, 14 Ohio, 122; Kyle v. Kyle, 5 Ohio St. 15; Stanbaugh v. Smith, 23 Ohio St. 584 and 594.
    II. The proceedings were against Mary Barney, and not her estate. Williams v. Holden, 4 Wend. 223; Payson v. Tufts, 113 Mass. 493; Davis v. Noble, 42 Ohio St. 405; Wood v. Torey, 97 Mass. 321; Cook v. Leland, 5 Pick. 236. A tax assessed against a dead person is void. Crugar v. Dougherty, 43 N. Y. 107, 118, 119. Tax laws will be strictly construed. 43 N. Y. 119; Sharpe v. Spear, 4 Hill, 76. A tax must be assessed against a living person. Welty on Assessments, 135; Smith v. Davis, 30 Cal. 536; Myers v. Hale, 130 Mass. 266.
    III. The auditor acted without evidence. We have said before, that this action was adversary. The auditor is required by section 2782, to notify the person against whom he proposed to proceed, that such person may have an opportunity to show that his return is correct, and the auditor is empowered to send for persons and papers and issue compulsory process for the same, and hear evidence, and when he decides he “ shall, in all such cases, file in his office a statement of the facts or evidence upon which he made such correction : ” This is language similar to that in section 2807, requiring boards of equalization, when an addition is made, to enter on their record a statement of the facts on which it was made.
    
      The auditor’s action must be based upon evidence, and if he undertakes to act without evidence such action is void. Fratz v. Mueller, 35 Ohio, St. 397-405; Iron Company v. Schugel, 9 Am. Rep. 591; Hirschman v. Fratz, 7 Law Bull. 35; the inventory is no evidence to prove the existence of taxable property for previous years. It might he evidence of the existence of the items named at the time of the appraisment, but it is not conclusive as to that even upon the executors who made it. Cameron v. Cameron, 15 Wis. 1; Nabb v. Dickson, 7 Nevada, 163. The board of equalization passed upon the same questions. This action of the board was judicial, and it is final, where they have any evidence before them to sustain their finding. Welty on Assessments, section 158; Wagoner v. Loomis, 37 Ohio St. 571 to 582; Heffer v. Mahony, 19 Law Bull. 369.
    IY. The decisions of the board of equalization are and must be final, unless impeached in a court of competent jurisdiction. If the citizen whose case is adjudicated by this board, acquiesces in their determination the state or the county ought not to be allowed to repudiate it. If conceded by the one, to be binding upon him, the law should declare it to be equally binding upon the other. This rule is safe and is just. Any other will beget injustice and inspire official speculation and greed.
    V. The act of April 14, 1886, is unconstitutional. It is in conflict with section 28 of art. II. of the constitution of Ohio. The statute provides that the auditor shall, for each year, ascertain the true amount which a person ought to have returned for taxation, “for not exceeding five years next prior to the year in which the inquiries ” are made, and to such true amount “ 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 enter these on his tax list and certify them to the treasurer for collection. The act itself denominates it as a penalty. The act also requires the auditor to ascertain the true amount which such person ought to have returned. It cannot be, • then, that the object was to add fifty per cent, in order to make the amount enough. The state had no intention to assess a man on more property than he owned. No, the true amount having been ascertained by the auditor, then the fifty per cent is added, clearly as a punishment.
    Was it intended to have retrospective operation? The terms of the statute clearly indicate such intention on the part of the legislature. It repealed the law of 1878, which allowed the auditor to go back four years. It could not have been the legislature’s intention to leave the four years previous to 1886 unprovided for under the law. On the contrary they added one year to the time fixed by the old law and provided that the auditor should go back five years in his investigation. Railroad v. Commissioners, 31 Ohio St. 338 and 344. Again, section 2781, was one of six sections in the Revised Statutes of 1880, relating to this subject. The five sections following section 2781, excepting section 2784, remain in force to-day, as they were in 1886, and their provisions apply and are connected with section 2781, as it originally stood and as it was amended. The following sections point out the manner and define the power to be exercised by the auditor in Carrying out the provisions of section 2781. And if the auditor was to go back five years, he would employ the same process as if he went back one year. To say that the statute might have a prospective operation is not an argument, for all statutes remedial and penal have a prospective operation necessarily.
    We concede the principle adopted by Judge White in the ease of Berneir v. Becker, 37 Ohio St. 74, that, “ It is laid down as a rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively.” But we insist that the legislative intention is to be ascertained from the statute itself and the purpose and object sought to be accomplished from its passage. Again, we submit that if the legislature had intended this statute to have a prospective operation they would simply have made it supplementary to the original section and left that unrepealed.
    Can the penalty be separated from the principal sum for the years previous to 1886 ? Only a few words need be said upon this point. To do this the court must dissect this statute word from word, clause from clause, and sentence from sentence. If the statute be retrospective, as already claimed, as to the true amount of tax, it is also retrospective to the penalty? By express terms they are made inseparable.
    Can any part of this statute be held valid ? We here proceed to consider its unconstitutionality with respect to a division of it at the time it went into effect, as well as a division of the penalty from the principle. It cannot be divided by holding it void as to the returns and additions made in those years before its passage, and valid as to those in the years afterwards. Nor as already claimed, valid as to the tax upon the true returns, and invalid as to penalties. In this case the effect of such construction would legalize the action of the auditor for the three last years, and invalidate for the first two. The law is all one and cannot be separated. The definition of retroactive legislation, given by Judge Story, had already been quoted; this is substantially adopted and followed in Ohio and in those states that have a similar constitutional provision. Rairden v. Holden, 15 Ohio St. 210; Dow v. Norris, 4 N. H. 16; Clark v. Clark, 10 N. H. 380; Greenlow v. Greenlow, 12 N. H. 200; Sturges v. Carter, 114 U. S. 511 and 519; Cooley on Const. Lim., 177, 178; Warren v. Mayer etc., 2 Gray, 98, 99; State v. Commissioners, 5 Ohio St. 497-507; Slauson v. Racine, 13 Wis. 398; State v. Dousran, 28 Wis. 547; State v. Sinks, 42 Ohio St. 345; Jones v. Rollins, 18 Gray, 329; State v. Hughes, 43 Ohio St. 98, 124. Butzman v. Whitbeck, 42 Ohio St., 223.
    
      Wm. Worthington, Judson Harmon, and J. W. Warrington, by consent of the court,
    submitted the following argument as to the constitutionality and effect of the act of April 14, 1886 (83 O. L. 82), amending and repealing sec. 2781 of the Revised Statutes of Ohio.
    I. The penalty makes the act of 1886 unconstitutional in its retrospective operation.
    
      Indeed it is impossible for it to be otherwise. The auditor can correct the return only by adding specific property omitted therefrom; such property is always capable of valuation, and after valuation any arbitrary addition is necessarily a penalty. A statute imposing such a penalty for an act already done is both retroactive and ex post facto, and therefore void. Nor does it matter that in previous years, by prompt action, the state might have yearly imposed a similar penalty. The lapse of time operated as a bar, which, in view of the constitutional inhibition against retroactive legislation, once fallen could not be raised. Cooley’s Constitutional Limitations, 6th ed., 448, and cases there cited. Rockport v. Walden, 54 N. H. 167; Mellinger v. Houston, 68 Tex. 37; State v. Mayor, 37 N. J. L. 39; Nash v. White’s Bank, 105 N. Y. 243; better reported in 7 Cent. Rep’r, 690.
    II. The rule determining when part of a statute may be upheld as constitutional, while another part is void, has been often applied and is well understood. As was said in Baldwin v. Franks, 120 U. S. 685-686: “ To give effect to this rule, however, the parts — that which is constitutional and that which is unconstitutional — must be capable of separation, so that each may be read by itself. ” “ The limitation which is sought ” in that case “ must be made, if at all, by construction, not by separation. This, it has often been decided, is not enough.”
    Or, to use the substance of the language of this court, the two parts of the statute must be independent, one from the other, otherwise it is improbable that the legislature would have enacted one without the other. State v. Sinks, 42 Ohio St. 345; State v. Pugh, 43 Ohio St. 98; State v. Dombaugh, 20 Ohio St. 167; Commonwealth v. Potts, 79 Pa. St. 168; Lathrop v. Mills, 19 Cal. 514, 535; Genin v. Auditor, 18 Ohio St. 535; Bowles v. State, 37 Ohio St. 35; State v. Dombaugh, 20 Ohio St. 167; Railroad v. Commissioners, 31 Ohio St. 338; Gibbons v. Catholic Institute, 34 Ohio St. 289; Adler v. Whitbeck, 44 Ohio St. 539; State v. Frame, 39 Ohio St. 399; Butzman v. Whitbeck, 42 Ohio St. 223; People v. Kenney, 96 N. Y. 294; State v. Constantine, 42 Ohio St. 437; 
      People v. Bull, 46 N. Y. 57; Duer v. Small, 17 How. Pr. 205; Lathrop v. Mills, 19 Cal. 513; Allen v. Louisiana, 103 U. S. 80; Commonwealth v. Kimball, 24 Pick. 362; State Freight Tax, 15 Wall. 232; Ratterman v. Western Union Tel. Co., 127 U. S. 411; Jones v. Bridgeport, 36 Conn. 283; County of Redwood v. Winona, etc., Land Co., 40 Minn. 512; Hoke v. Commonwealth, 79 Ky. 567.
    III. But although the act cannot have retrospective operation, it is not absolutely void. It was intended to furnish a rule for the future as well as the past, and for the future it may operate. The distinction has been alluded to under the previous head, and is well settled. Jaehne v. New York, 128 U. S. 189. Thus in Gilpin v. Williams, 25 Ohio St. 283, it was declared that the act providing for the sale of entailed estates was intended to be retroactive, and was void in its retroactive operation. But prospectively, that act is valid. Nimmons v. Westfall, 33 Ohio St. 213; Oyler v. Scanlan, 33 Ohio St. 308. The same is true as to laws impairing the obligation of contracts when applied retrospectively. They are still valid prospectively, if the intention to create a permanent rule be manifest. So as to ex post fact claws generally.
    - IY. Section 2, of the act of April 14,1886, 83 Ohio L. 82, repeals in terms original section 2781, without any saving clause. This repeal not only abrogates that law, but abandons all recoveries that might have been made under it.
    “ The rule undoubtedly is, that where a statute is repealed without any saving clause as to pending suits, ‘ arising thereon,’ all right to maintain them, whether they be civil or criminal, is at an end.” Railroad Co. v. Belt, 35 Ohio St. 481. The right to maintain is gone, because the right of action, whereon the right to maintain depends, is gone with' the statute that created it. Lawler v. Burt, 7 Ohio St. 340; Butler v. Palmer, 1 Hill, 324; State v. The Mayor, 37 N. J. L. 39; Norris v. Crocker, 13 How. 429; Nash v. White’s Bank, 7 Cent. Rep’r, 690; Calkins v. The State, 14 Ohio St. 222; Hartung v. The People, 22 N. Y. 95; Medley, Petitioner, 134 U. S. 160, 174.
    
      Nor can it be contended that original sec. 2781 is saved as to false returns made prior to its repeal by force of sec. 79, because that statute by its very terms does not apply to those cases where the new law was intended to act retrospectively and furnish the rule of action. After contending so strenuously that the act of 1886 shows clearly upon its face its intention to act retrospectively, counsel for plaintiffs in error will hardly turn about face and deny the existence of such intention. 4 Curw. 2799; Bergin v. State, 31 Ohio St. 113; Westerman v. Westerman, 25 Ohio St. 500; Lublow’s Heirs v. Wade, 5 Ohio, 507-508; Comr’s of Union Co. v. Greene, 40 Ohio St. 318, 321; Raymond v. Cleveland, 42 Ohio St. 522; Seasongood v. Cincinnati, 46 Ohio St. 296; Norris v. State, 25 Ohio St. 224; Railroad Co. v. Belt, 35 Ohio St. 479, 481; Lafferty v. Shinn, 38 Ohio St. 49; Upshur County v. Rich, 135 U. S. 467, 477; Woodruff v. Parham, 8 Wall. 138; Sturges v. Carter, 114 U. S. 511; Bulkley v. Stevens, 29 Ohio St. 622.
   Minshall, J.

1. The principal question in the case, and the one that has elicited the most discussion from counsel, is as to the constitutional validity of the law under which the additions to the tax returns of the deceased were made. It is presented in two aspects: First, as to its prospective, and second as to its retrospective, operation.

The section in question, 2781 Revised Statutes, was adopted April 14, 1886, and reads as follows:

“ 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.”

It is not claimed by all the counsel who have been heard in the case, that there is any constitutional objection to this statute when applied to omissions occurring in any year subsequent to its adoption. It is conceded by most that its application to such cases is without objection. The ground upon which the opposite view is maintained is, that the constitution requires all taxes on property to be according to its true value in money (sec. 2, art. 12) ; and that the addition of the 50 per centum to the true value authorized by the section in question, contravenes this provision of the constitution. This is more plausible than sound. The object of this section is not merely to afford a remedy for the recovery of what 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. It is conceded that the state may, for this purpose, add a penalty to the tax itself. What difference then can it make, so far as any substantial right of the individual is concerned, whether he is made to feel the penalty for a false return in the basis on which he is taxed, or in the rate of the tax itself ? Let either course be adopted and the result will be one and the same — an increase in the amount of what he has to pay. It is the latter which is of moment to the tax-payer, and not the arithmetic by which it is ascertained. But it is not necessary to consider the question further upon principle, for the addition of a certain per centum to the true amount as a penalt}r for making a false return, was sustained by this court in Genin’s Ex’r v. Auditor, 18 Ohio St. 534, and is in accordance with what has been the legislative policy of this state from an early day.

But it is apparent from its reading, that this section was, on its enactment, intended to apply to any case of a false return, falling within any of the five preceding years ; and it is this application of the statute to which objection is made by all the counsel who hold the law to be invalid, on the ground that it is within the inhibition of the constitution against the enactment of retroactive laws: Legislative Article, § 28. The application of the objection to this case is found in the fact that the suit is to recover, not only the tax on additions made by the auditor for the years 1886,1887 and 1888, to which the statute had a prospective operation, but, also, for the years 1884 and 1885, to which it had not, and could only affect by retroaction. But it must be observed, that for these two jmars the auditor added no penalty upon the amount he found had been omitted in each year, he simply added the amounts and extended the tax at the proper rate for each year. So that the question here is, not whether a penalty may be imposed by a law passed subsequently to the omission, but, whether the amount that should have been returned and might have been added under the provisions of an existing law, to wit, the act of 1878, may now be added for the purpose of taxation under the provisions of the section in question ?

All laws intended to affect the conduct or the acquisition of rights by the citizen, should have a prospective effect only. This is the principle incorporated in our constitution, inhibiting retroactive laws, and finds a place in every enlightened system of jurisprudence. But the principle in no way impairs the power of the legislature to pass laws of a remedial nature, and apply them to past as well as future cases. Where a right has ’accrued a remedy for its enforcement cannot be said to impair any right of the person against whom it is enforced; to assert the contrary would be to confound the wrong with the right. In Rairden v. Holden, Adm'r, 15 Ohio St. 207, suit was brought upon the bond of an administrator under a statute which gave a new remedy on the bond against the administrator and his sureties, and which could not have been pursued at the time the bond was given. It was claimed that the action could not be maintained under the provision of our constitution, inhibiting retroactive laws. But the court held that “a statute purely remedial in its operation on pre-existing rights, obligations, duties and interests, is not within the mischiefs against which that clause was intended to guard, and is not, therefore, within a just construction of its terms,” and the suit was sustained. Such has been the uniform holding in this state.

Original section 2781 Revised Statutes, was the same as an act passed May 11, 1878, the latter having been, without change in the phraseology, carried into the revision of 1880. It, like the amended section of 1886, provided a remedy for the correction of false returns, the provisions of the two statutes being in all respects identical, except that the act of 1878 limited the inquiry to a retrospect of four years, and confined the'penalty to the last or current year of the inquiry. Under the act of 1878 additions were made to the returns of one Sturges by the auditor of Richland county. He refused to pay the taxes extended thereon in accordance with the act, and suit was brought for their recovery by the treasurer. The suit was removed by Sturges to the Circuit Court of the United States for that district; and judgment having been rendered against him, the case was taken on error to the Supreme Court of the United States, where the judgment was affirmed. Sturges v. Carter, 114 U. S. 511. It was insisted that the act was invalid because retroactive. In answer to this, Woods, J., delivering the opinion, said : “ The act of 1878 merely provided a method by which taxes might be assessed and collected in spite of the annual settlements made by the auditor. It gave a new remedy to the state for enforcing a right which it had all the time possessed, namely, the right to the taxes upon property liable to taxation.” And again it “ took away no vested right of the tax-payer, it imposed upon him no new duty or obligation, and subjected him to no new disability in reference to past transactions.” The same construction of the statute was adopted by this court in Lee v. Sturges, 46 Ohio St. 153. The suit was brought in 1878 for the recovery of taxes for the years 1876 and 1877, placed upon the duplicate by the auditor after his semi-annual settlement, for 1877, with the treasurer. The judgment of the court below for the amount was affirmed on error. And in a more recent case, State ex rel. v. Raine, 47 Ohio St. 447, it is said by Bradbury, J.: “ The several statutes giving to state and county auditors authority relating to the collection of the public revenue do not create obligations against the citizen or taxpayer; they simply provide the instrumentalities by which the revenue officers may enforce obligations imposed by the statutes which create the tax.”

Now, in the case before us, the right of the state to the simple taxes on the additions made by the auditor for the years 1884 and 1885, was not created by section 2781 as adopted in 1880, nor by the same section as amended in 1886. 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 the duty of every citizen to return his property for taxation, and to pay the taxes levied upon it equally with others. So that the repeal of the original section, in no way affected the primary right of' the state to recover the simple taxes that had accrued upon the property of the deceased for the two years prior to 1886. The recovery of these taxes was a fair subject for the application of retrospective legislation. This is not seriously disputed; but, it is claimed, that whilst provision might have been made for the recovery of the taxes on the true amount of the additions only, the provisions therefor are so plaited and interknit with the provision for a penalty as that the entire section, so far as it was, intended to be retrospective, must fail. There is no question but that the provision for a penalty, as applied to the years prior to the passage of the act of 1886, can have no effect. It imposes a liability for the making of false returns, or failing to make returns, that did not exist at the time of the omission, and is therefore within the mischief intended to be avoided by the provision in our constitution against retroactive laws.

Therefore the question made is fairly presented. But we think it must yield to a rule of construction that has been firmly established by repeated decisions of this court. By this rule a statute may be invalid in part, by reason of some provision being repugnant to the constitution, and valid as to the residue, where it appears that the invalid part is an independent provision, not in its nature and connection essential to the other parts of the statute, nor so related to the general purpose of the statute as to warrant the conclusion that the legislature would have refused to adopt it with the invalid part stricken out. Bank v. Hines, 3 Ohio St. 1, 34; Treasurer Fayette County v. Bank, 47 Ohio St. 503; State ex rel. v. Dombaugh, 20 Ohio St. 167; Railroad Co. v. Commissioners, 31 Ohio St. 338; Gibbons v. Catholic Institute, 34 Ohio St. 289, 290; Bowles v. State, 37 Ohio St. 35.

Here, in the first place, the provision for the addition of the amount omitted in the return of the taxpayer, and that for the addition of a penalty, are clearly separable. It may be said that the penalty is made to depend upon the addition of what had been wrongfully omitted; but the converse is not true: It is not necessary to impose a penalty that an addition may be made of what had been omitted. Under the statute, mere verbal criticism aside, the true amount omitted by the individual may be placed on the duplicate, with the tax extended thereon, without first increasing the addition by a penalty of 50 per centum. In the second place, it cannot be claimed with any show of reason, that the legislature would not have provided for making the addition of the amount omitted, without the addition of a penalty also. To so hold would be to disregard all known motives of human conduct, and to say, that an entire body of intelligent men would be governed by mere caprice instead of the interests of their constituents ; or rather by a desire to make the delinquent property holder smart, than to subserve the interests of the public treasury. As such motives are not entertained by men in general, they should not be ascribed to the legislature.

As the act applied prospectively to the years 1886, 1887 and 1888, and as no penalty was added by the auditor for the years 1884 and 1885, the court of common pleas erred in dismissing the petition on the ground that the act of 1886 was unconstitutional.

2. We will next consider the ground on which it is said the circuit court affirmed the judgment, namely, that the proceedings instituted by the auditor were against Mary Barney, and not against her estate. Conceding that the proceedings had before the auditor for the correction of the returns of property for taxation, are judicial in character, it does not follow, as we think, that they are to be governed by all the precise rules of the Code of Civil Procedure for the commencement and prosecution of civil actions. Notice is required, but no particular style for the proceeding, or form of notice, is prescribed. It is therefore sufficient if the notice fairly informs the party of the nature of the proceeding, and in what capacity he is to appear and answer. Two notices were given in this case, both of which were disregarded. Both were addressed to “ A. W. Prout and Perry Gr. Walker, executors of the estate of Mary Barney, deceased.” The first informed them that an error had been discovered in “ your tax returns,” and fixed the 16th of March, 1889, for a hearing. This being disregarded, a second notice was sent them on April 5, 1889, addressed in the same way, and, reciting the former notice and its disregard by them, proceeded as follows: “ This is therefore to notify you that unless you shall on the 9tfi day of April, 1889, at 10 o’clock, A. M., appear at this office, which said date and place is fixed that you may have an opportunity of showing that the statement or return made by Mary Barney to the assessor was correct. Otherwise from the statement and evidence furnished to me I shall proceed to assess and charge Mary Barney upon the tax duplicate of the county with the following amounts: 1883, $11,900; 1884, $16,500; 1885, $20,500; 1886, $17,000; 1887, $24,000; and 1888, $33,000, and the same will be placed upon the county treasurer’s books for collection, together with 50 per cent, penalty on amount ascertained for the years 1886, 1887 and 1888.

“Wm. J. Bonn, County Auditor.”

Taking these notices together and it fairly appears that the proceeding was against the estate of Mary Barney, deceased ; and that what they were required to answer, was as to the returns made by her in her life-time, and not as to their individual returns. That they so understood it at the time, appears from their subsequent conduct; and that is enough.

8. It is also claimed, that there was no valid presentation of the claim by the treasurer to the executors for allowance. As to this it is sufficient to say, that no presentation of the claim by the treasurer was required. The claim, on notice to the executors, had been established before the auditor and by him certified to the treasurer for collection. Having had notice of the commencement of the proceeding, the law charged them with 'notice of what thereafter was done, and it became their duty to pay the taxes charged upon the additions as other taxes.

4. It is also claimed that there was no evidence before the auditor to sustain the findings made. The evidence consisted, among other things, of a certified copy of the inventory of the estate filed by the executor in the probate court, showing notes secured by mortgage and unsecured notes, many of them running back long before 1884, on which the interest appeared to have been kept paid up, and all inventoried as good. The certified copy of the inventory was competent evidence. It made a prima fade case, and in the absence of anything to the contrary warranted the making of the additions, as, by a reference to the returns made by the deeease'd during these years, it was merely a matter of arithmetic to ascertain the omissions that had been made.

5. It is also claimed, that the claim that Mary Barney had omitted taxable property had been heard and passed upon by the board of equalization of the city of Sandusky, and was therefor adjudicated. The records of this board show that some small additions were made to her returns for the years 1884, 1885 and 1887, but they do not show that any of the matters now in dispute were adjudicated and determined by it. But the power possessed by that board are very different from the jurisdiction conferred on the auditor by section 2781. The board is a part of the machinery provided for the assessment and taxation of property; and false returns or statements made to it, maj’- be corrected by the auditor under sections 2781 and 2782, as well as those made to the several assessors, so that what may be done before a board of equalization cannot be plead as a bar to the auditor in proceedings under section 2781 to correct a false return made by a property owner.

The judgment of the circuit court and of the court of common pleas, are reversed, and the cause remanded to the latter court for further proceedings.  