fect the communication between the past and the present interpretation of law, and open to the world of lawyers all the richness of intermediate legal lore. As the work advances the volumes of the American Decisions are more and more eagerly looked for. We quote from an interesting paper written by J. L. High, Esq., of Chicago, and published in the American Law Review for June, under the interrogative caption, "What shall we do with the Reports?" the following, which simply indicates the plan and scope of the American Decisions, instead of adding frankly that the original intention has been so far fulfilled to the letter. "In 1878 Mr. John Proffatt began the preparation of the American Decisions, which were intended to include all the cases of general value and authority in the courts of the several States from the earliest issue of their reports down to the year 1869, the period with which the series of Mr. Thompson's American Reports, above mentioned, began. The scope of the work as announced by the reporter, was to present all cases of established general authority which had been indorsed by subsequent decisions or cited by text writers. Cases turning upon local statutory law and of no general authority beyond the particular State, were to be discarded, as well as obsolete cases. The aim was to give, by a series of continued, authoritative decisions, the system of law in each of the States as compared with other States of the Union, and thus to show by a compilation of contemporaneous decisions the structure and growth of American law, and to present in outline a system of comparative American jurisprudence. The points of counsel, are to some extent, preserved with the authorities cited in support of them. When a decision embraces several points, some of which have no present value, or are of merely local interest, or turn upon points of practice, such parts of the decision are eliminated. These reports were intended to embrace all the American decisions of general value down to the American Reports, which were to be regarded as a supplement or continuation of this series,-the two combined thus presenting the entire body of American decisions of value in a condensed form. It was estimated that seventy-five volumes would complete the work; but as thirty-one volumes have already appeared, the last bringing the work down only to the year 1838, it is doubtful whether the original design can be completed within the limits proposed. The last volume comprises the decisions of general im portance embodied in twenty-nine volumes of State reports The Federal reports are not included in the scope of the work. Mr. Proffatt's death occurring after the publication of the eleventh volume, the work has since been continued by Mr. A. C. Freeman." We desire to add here that the distinguished querist, in all his principal suggestions pointing to a reform in the matter of published reports by which they are so furiously multiplied, simply reiterates some of the protests of the Ouо LAW JOURNAL, and the methods we have advised as certain to bring about the desired result. The principal and first inauguration of reform must be within the bosoms of the judges themselves. We quote again: **"the judges themselves should be reminded that the rapid accumulation of reports is, in large measure, due to their own prolixity in the writing of opinions of undue length. The the time for learned and elaborate essays, in the form of judicial opinions, with exhaustive reviews of all the authorities from the yearbooks down, has long since passed. Hair-splitting distinctions and exercises in dialectics should no longer find place in the literature of the law. any, The overworked lawyer, in the hurry of active practice, reads an opinion for its pith and marrow, and for nothing else. A concise statement of the facts of the case, a brief, pointed, and crisp enunciation of the principle upon which it is decided, with a citation of a few leading authorities, if bearing upon the question, are all that he desires. And what more, it may be asked, is necessary, either for the student or practitioner? It is the boast of a learned judge of the writer's acquaintance, who has occupied the bench for a quarter of a century, that he has written in America. It should rather be the height more pages of judicial opinions than any judge of judicial emulation to compress one's judicial opinions into the shortest and most concise form consistent with clearness." This, with the added designation by the court of all cases which are of sufficient general interest to justify publication-excluding all cases where the decision is upon questions of fact-will dispose of half the difficulty met with by the attorney who attempts to "keep up with," or to purchase and store all the vol umes of reports published by the various States and Territories. These reforms, how ever, are not yet inaugurated. Pending their adoption the publishers of this paper have to practice his profession, and has ever since except about one year when he resided in Arkansas, been a citizen of Columbus. He was elected an honorary member of this Bar Association July 1, 1869. "He began the practice of law under the most brought him into close relations with the largest favorable circumstances. His family connection business interests of the city at that time. He showed fine abilities for professional work. He tion of his cases and active and energetic in was painstaking and industrious in the preparapresenting them and had unusual elegance of manner and diction in addressing court and jury. His management of his early practice gave assurance of attaining great success and a nearly perfected arrangements by which even the great number of cases decided in all the courts of last resort in all the States may be brought within the means and control of all lawyers. The magnitude of the undertaking, and the great expense, as well as the numberless difficult matters of detail to be first fully arranged has already delayed the work far beyond the expectations of the projectors. However, cach day brings us nearer to the accomplishment of our purpose, and then a proper and fitting supplement to the American Decisions will be in the hands of the pro-high position in our profession. But he was fession, and the query of the writer above quoted, fully and practically answered. Volume 34 of the American Decisions contains so many valuable cases and such an array of notes and citations on so many different and interesting topics, that it must be seen to be fully appreciated. WILLIAM DENNISON. The death of Ex-Governor William Dennison, at his home in this city, Thursday morning last, was the cause of a universal feeling of regret at the loss of one of Ohio's truest and best statesmen and citizens. Many eulogistic words have been spoken and written of him but none better set forth general sentiment than the memorial adopted by the Bar of this city, which we give below A committee of seven, consisting of Hon. Allen G. Thurman, Hon. R. A. Harrison, Hon. Henry C. Noble, Hon. Chauncey N. Olds, General James A. Wilcox, Edward L. Taylor, Esq., and B. F. Martin, Esq., were appointed a commitee to draft resolutions. Senator Thurman from the committee, reported the following: "The Bar of the Capital of the State of Ohio, assembled upon the occasion of the death of their brother Dennison, in testimony of their respect and esteem for him in life, and of their sense of the loss which they in common with the citizens of Columbus, and of the State at large suffer in his death, adopt the following memorial: "William Dennison, who died in this city on the morning of June 15, 1882, has been a member of the Bar of Franklin county since 1840. He was born in Cincinnati, November 23, 1815; was graduated from Miami University at Oxford, O., in 1835; studied law at Cincinnati with the Hon. Nathaniel G. Pendleton; was admitted to the Bar in 1840, and soon after married Miss Ann Eliza Neil, of this city, and removed here drawn from its steady pursuit by large business interests other then professional and the great temptation of public affairs. He was a favorite public speaker and the people in 1848 called him into their service as State Senator, and in 1859 he was elected Governor of Ohio. "He thus found himself a leader in a great party at a time of unusual excitement, and on the breaking out of the war in 1861 he was in a place of great responsibility. He acquitted himself in these important positions with honor, ability and distinction. "He was afterwards, in 1864, called by President Lincoln to the office of Postmaster General of the United States, and was one of the Cabinet officers who stood by the death bed of Lincoln as he passed from earth to take his place among the immortals. "He was also a Commissioner of the District of Columbia under an appointment of General Grant. On returning from public office he continued his interest in public affairs to the end. "He retained his law office and library, and his title as a lawyer until his decease. "Governor Dennison was a man of the rarest courtesy of manner, springing from unaffected kindness of heart, and treated all men with such grace as won their love. "He was a pleasant companion, a generous and loyal friend, of noble charity and high moral courage, an earnest patriot, and a true Christian gentleman, whose memory we are proud to cherish as a member of our Bar. "Resolved, That a copy hereof be presented to the family of the deceased by the Secretary of this Association. "Resolved, Farther, as a token of our respect, that we will attend the funeral of the deceased in a body." TUESDAY morning last, Attorney General Nash appeared before the Supreme Court and in very fitting words moved that the said memorial be spread upon the Journal of the Court. Chief Justice Okey replied that the Court concurred in the just and appropriate estimation set forth, of the deceased, and the motion would be granted. MANDAMUS-TAXES DUE STATE COLLECTED BY COUNTY TREASURER. SUPREME COURT OF OHIO. THE STATE OF OHIO ON RELATION OF JOSEPH TURNEY, STATE TREASURER, v. LUKE A. STALEY, TREASURER OF HAMILTON COUNTY. June 13, 1882. 1. Proceedings by mandamus, on the relation of the Treasurer of State, will lie to compel the treasurer of a county to transfer to the state treasury the state's proportion of taxes collected by such county treasurer. 2. A petition for a writ of mandamus in such case, which shows the collection of such taxes by the county treasurer, is not defective for want of an averment that the taxes so collected remain in the county treasury subject to the command of the writ. 3. Under section 1043 of Revised Statutes, as amended April 19, 1881 (78 Ohio L. 226), the amount of taxes for which the treasurer stands charged, is the whole amount of taxes levied on the duplicate, less the amount returned delinquent and the collection fees allowed the treasurer. 4. The amount of money in the treasury, for which the treasurer stands charged, cannot be increased or diminished by the exercise of the authority conferred on the auditor by said section to correct "any error which may have occurred in the apportionment of taxes at any previous settlement." 5. In obedience to a writ commanding a county treasurer to pay into the state treasury a balance due the state on its portion of taxes collected by the county treasurer, and for which no provision has been made by the County Auditor in his apportionment of taxes, any excess of money in the treasury over the sums apportioned to other funds for which taxes were levied, may be used by the treasurer in making such payment. Demurrer to 1st and 4th defenses sustained. In mandamus. The relator, in his petition, represents that on the 28th of October, 1881, the Auditor of State examined the certificate and abstract of the semi-annual settlement between the Auditor and Treasurer of Hamilton county, made on the 23d day of September, 1881, which certificate and abstract were returned by said Auditor of Hamilton County to said State Auditor on the 3rd of October, 1881, as required by law. That upon such examination, the Auditor of State ascertained the exact sum of money payable by the Treasurer of Hamilton County to the State Treasurer to be $291,698.19, and also that the amount of Hamilton County's proportion of state common school fund was $73,183,60; whereupon the Auditor of State certified his findings to the Treasurer of State as required by law, and issued his draft upon the Treasurer of Hamilton County in favor of the relator for $218,514.59, the same being the difference between the amount so found due to the State Treasurer from the Treasurer of Hamilton County, and the amount of school fund due to said Hamilton County from the state treasury. That prior to said 28th of October, 1881, the Treasurer of Hamilton County had paid into the state treasury on account of the amount so found due from the Treasurer of Hamilton County to said state treasury, the sum of $206,979,99, at the last semi-annual settlement in the year 1881, leaving a balance due of $11,534.60. That said draft had been duly presented for payment by the relator to the defendant, the Treasurer of Hamilton County, and payment of said balance of $11,534,60 demanded, which has, and ever since has been refused. Wherefore said relator prays for a writ of mandamus to compel the defendant, the Treasurer of Hamilton County, to pay and deliver to the state treasury the said sum of $11,534.60, and other relief. Upon this petition an alternative writ of mandamus was issued as prayed for, and thereupon the defendant filed an answer containing several alleged defenses, to the first and fourth of which the relator demurs. The first defense is as follows: "That the plaintiff ought not to have its writ of mandamus herein, for the reason that plaintiff has a plain, adequate and specific remedy at law for the grievance of which he complains." The fourth defense is as follows: "This defendant in further answer to said petition and writ issued herein says, that the Auditor of Hamilton County, Ohio, on the 23d day of September, 1881, at his office, made settlement with defendant and ascertained the amount of taxes with which he, as treasurer, was to be charged, and, after making the deductions to which he was entitled, distributed in just and ratable proportion upon the several taxes charged on the duplicate, ascertained the balance for which said treasurer was to be held liable, and to whom, in their several amounts, he was liable for such balance, and also ascertained the amount remaining in the treasurer's hands belonging to each fund; and thereupon the said auditor, on said day, did issue to the treasurer, this defendant, a certificate and abstract of such settlement, and of the balance of the amount of taxes received and charged to him as due to the state, the balance thereof due to the county, the balance due for road purposes, and the balance due to the townships and the other bodies and purposes to which said aggregate in his hands was found to belong, a copy of which certificate and abstract of settlement, and account with the state, is hereto attached and made a part of this answer. pursuance of this settlement, and of the provisions of law in that behalf, the said treasurer forth with proceeded to transfer and did transfer and enter into their several accounts the sums with which he was charged in said settlement, in favor of the state, the county, the townships, corporations and the said several funds as shown in said certificate of settlement; and said several amounts became thereafter subject to draft upon said treasurer in favor of the several persons or corporations authorized to receive the same. And the said treasurer further says that he forthwith, upon said transfers of said several sums to their respective funds, proceeded to pay them out upon the proper drafts or warrants of the county auditor to the corporations or uses to which they became payable upon said settlement, and thereafter continued to pay them, up to the service of the writ herein, and has ever since continued to pay them as by law and his obligation he is bound to do. This defendant further says, that by said settlement he became charged in favor of the State of Ohio with the sum of $280,163.59, ascertained and certified by said auditor as aforesaid to be the amount and balance of taxes due the state of the moneys collected by said treasurer, which said balance so certified to be due the state he caused to be remitted to the Treasurer of State, as alleged in petition of plaintiff. All the balance of moneys in his hands as treasurer of said county he held-and in part holds-on account and subject to the claims of others than State of Ohio, ascertained and determined by the said county auditor in the settlement and certifiate aforesaid, and credited and transferred to them, and he is not authorized or permitted to apply said funds to other uses, and is liable to the corporations and uses to which such funds have been transferred for the amount thereof remaining in his hands. Defendant holds no funds in his possession for the use of the State of Ohio or to its credit. The contents of the certificate and abstract of settlement referred to and made a part of the answer, are sufficiently stated in the opinion. The grounds of demurrer to these defenses are that the facts stated are not sufficient to constitute a defense to the action. McILVAINE, J. The demurrer to the answer brings under review the sufficiency of the petition, and the defendant claims that the facts stated in the petition do not entitle the plaintiff to the writ of mandamus, for the reason that there is a plain and adequate remedy for the grievance complained of, in the ordinary course of the law. Section 6744, of the revised statutes, provides that "the writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of law," and, it is claimed, that such a remedy is furnished by an action on the treasurer's bond. It would seem that an action on the bond might be maintained under authority of section 168 of revised statutes, which provides, "That if any county treasurer, or other officer concerned in the collection of the public revenue, or authorized to collect and pay into the state treasury, money due or accruing to the state, fails to pay over all moneys by him received and belonging to the state, at the time and in the manner required by law, the Auditor of State shall immediately inform the Attorney General thereof, who shall forthwith institute and prosecute the proper suit against such officer and his sureties." The question therefore arises, would such suit afford "a plain and adequate remedy" within the meaning of section 6744? The object of the present action is to compel the transfer of certain funds belonging to the public revenues of the state from the treasury of Hamilton County to the state treasury. A suit on the treasurer's bond would not accomplish that object. Although the state in an action on the bond might recover the full amount of damages sustained, it would leave in the county treasury the fund to which it is entitled, and to which the county treasury is not entitled. In deciding the question now before us, it is worthy of remark, that section 6744, above referred to, is merely declaratory of the rule of the common law, which refused relief by the extraordinary writ of mandamus in cases where an adequate remedy was afforded by the usual and accustomed modes of procedure at law, and also, that section 168 does not declare a breach of an official bond, that would not have existed without the section, and for which an action on the bond is the exclusive remedy. Hence, no new rule has been established by this legislation, and it cannot be doubted that the jurisdiction by mandamus to compel payment from the public treasury, where such payment is a mere ministerial act, is a common and acknowledged right. See High on ex. legal Rem., sec. 112, and cases cited. The defendant relies on the case of The State v. Meily, 22 Ohio St. 534, in which it was held that where money is wrongfully retained by a probate judge from the party entitled thereto, such party has a plain and adequate remedy by action on the official bond of the judge, or by an ordinary action against him for the money, and therefore mandamus will not be allowed to compel payment until such ordinary remedy has been resorted to and proved ineffectual. In that case it was said that the retention of the money by the probate judge was his individual act-a conversion of it to his own use-and, no doubt, the identical money might be applied to the payment of a judgment recovered against him; but on the facts before us, the money in the county treasury could not be withdrawn for the payment of a judgment on the treasurer's bond at the option of the treasurer. Such judgment and its payment would not transfer public funds from the county to the state treasury, and any remedy which will not accomplish such transfer is not adequate within the meaning of this rule. There is no suspicion that the defendant is a defaulter, or that he has embezzled public funds. To which treasury does this money belong is the only question in the case-a mere question of law. If to the state treasury, it should be transferred, and mandamus is the only specific and appropriate remedy under the particular circumstances of the case. It is also contended that the petition and writ are defective in not alleging that the money claimed is, in fact, in the county treasury. No doubt, a writ of mandamus should not be issued unless it appears that the thing commanded to be done is capable of being performed. The question, therefore, whether the funds sought to be transferred from the county treasury to the state treasury, are, in fact, in the county treasury, is materal. It appears plainly enough that these funds, before the semi-annual settlement in September, 1881, had been received into the county treasury, and we think it must be presumed that they remain there until the con trary is shown. In view of this presumption, the petition in this respect is not defective. If the issuance of the writ be resisted on the ground that the funds claimed are not in the treasury of the county and under the control of the defendant, such state of facts must be shown by the defendant in his answer. Are the facts stated in the fourth defense sufficient? The object of the pleader was to show that defendant, as the Treasurer of Hamilton County, had no funds in his possession, or under his control, that were legally subject to the payment of relator's claim. The answer contains such specific averment; but we understand this averment to be a mere conclusion based on facts set forth in the answer, and especially in the certificate and abstract made by the county auditor upon the last semi-annual settlement on account of the taxes of 1880, which are fully set forth and made a part of the answer. This certificate and abstract, which are required and controlled by sections 1043, as amended April 19, 1881, (78 Ohio L. 226), and 1044 of the revised statutes, contain the controlling facts of the case in so far as they are made in conformity to law. Section 1043 provides that, "The aud itor shall attend at his office, on or before the 15th day of February, and also on or before the 10th day of August, annually, to make settlement with the treasurer of his county, and ascertain the amount of taxes with which such treasurer is to stand charged; and the auditor shall, at the August settlement, take from the duplicate, previously put into the hands of the treasurer for collection, a list of all such taxes as such treasurer has been unable to collect. * **: and after deducting the amount of taxes as returned delinquent, and the collection fees allowed the treasurer from the several taxes charged on the duplicate, in a just and ratable proportion, the treasurer shall be held liable for the balance of such taxes; and the auditor, after first correcting any error which may have occurred in the apportionment of taxes at any previous settlement, shall certify the balance due to the state, the balance due to the county purposes, and the balance due to the townships," &c. And section 1044, after giving more specific directions as to the manner of making the settlement, requires that "the auditor shall also make out and deliver to the treasurer a certificate specifying the amount charged on the tax duplicate of the county for each of the several purposes for which taxes have been levied; and also a certificate or an abstract of the taxes which have become due and payable, and which remain unpaid," &c. the balance due for Now, it appears from the certificate and abstract of this settlement, as made by the auditor of the county, that after all proper deductions, to-wit: the amount of delinquent taxes and the collection fees allowed the treasurer had been made from the amount of the duplicate, the auditor found the balance, for which the treasurer should be held liable, to be $2,811,649.74, and that the proportion thereof due to the state for the sinking fund, general revenue and common school fund, was $291,658.63. But the certificate also shows that from the aggregate of the treasurer's liability, the auditor further deducted the sum of $73,413.09, (thus reducing the liability of the treasurer to the sum of $2,738,236.65), on account of "net balance of errors corrected," and thus reducing the amount due the state by the sum of $11,534.60, being its proportion of said deduction of $73,443.09, leaving a balance due the state of $280,124.03, from which balance, the sum of $73,183.60, being the proportion of the common school fund to which Hamilton County was entitled, was retained by the treasurer, and deducted from $280,124.03, so found due to the state, and the remainder, plus $39.56 for special licenses, to wit: $206,979.99, was duly paid into the state treasury by the defendant, in full, as is claimed, of the state's proportion of the amount for which the treasurer of Hamilton County is held liable on account of the duplicate for the year 1880. The auditor of Hamilton County having transmitted to the auditor of state a duplicate of said certificate and abstract as required by section. 1045 of revised statutes, the Auditor of State proceeded to examine the same as required by section 181 of revised statutes, which provides, "The Auditor of State, immediately on the receipt of the certificates and abstracts of each semi-annual settlement between the auditor and treasurer of each county, forwarded to him by the county auditor, shall proceed to examine the same, and ascertain the exact sum or sums payable by each County Treasurer into the state treasury, and shall certify the same to the State Treasurer, specifying in the certificate or certificates the amount belonging to each fund and the total amount to be paid into the state treasury; he shall also ascertain and certify to the State Treasurer the amount of such county's proportion of the State common school fund, and of school, ministerial and other trust funds, if any, due and payable to such county; and at the same time he shall issue his draft or drafts upon the County Treasurer in favor of the County Treasurer, for the sum or sums so found due and payable, after deducting the amount of the several sums found due to the county on account of school, trust or other funds." On such examination the Auditor of State ascertained the "exact sum" due to the state to be $291,658.63, and after deducting therefrom the sum of $73,183.60, the county's proportion of the State common school fund, drew his draft on the County Treasurer in favor of the State Treasurer for the remainder, plus the sum of $39.56 for special licenses, to-wit: for the sum of $218,514.59. The Treasurer of State having given a credit, on this draft, of the money theretofore paid into the state treasury by the defendant, prosecutes this suit for the balance, to-wit: $11, |
