Gager, Treas., v. A. W. Prout et al. 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 $4,703.81 is in fact made up of the following sums and amounts, to wit: "For the year 1884, $16,500 20,500 17,000 24,000 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, "For the year 1887, "For the year 1888, "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 Sandusky, which is a city of the second class, equalized the value of the real and personal property, moneys 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, Gager, Treas., v. A. W. Prout et al. 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 city 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 $4,703.81 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 Gager, Treas., v. A. W. Prout et al. 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 Gager, Treas., v. A. W. Prout et al. 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. C. Cole, Wm. L. Avery, and Foraker, Black & Rockhold, 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. Gager, Treas., v. A. W. Prout et al. 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 |