The Toledo, Wabash, and Western Railway Co. v. Hammond. evidence tending to prove that the trunk was shipped to Lafayette and not to Peru. It is urged that the court erred in permitting the appel lee to testify as to the value of the opera glass mentioned in the bill of particulars. It is argued that the opera glass was not properly baggage, and therefore the common carrier, without knowledge of the fact that it was in the trunk, would not be liable for the loss thereof. It is true, that it is well settled, that merchandise which one carries in a trunk without the knowledge of the carrier is not protected as baggage, and if lost without the express fault of the carrier, he is not liable. Great Northern Railway Co. v. Shepherd, 9 Eng. Law & Eq. 477; Collins v. Boston and Maine R. R., 10 Cush. 506. But baggage is defined to be "such articles of apparel, ornament, &c., as are in daily use by travelers, for conve nience, comfort, or recreation." 1 Bouvier's Law Dic. 180. In Doyle v. Kiser, 6 Ind. 242, the learned judge speaking for the court says, "The articles of property treated as baggage, according to the decisions of different courts, may be clothing, traveling expense-money, a few books for the amusement of reading, a watch, a lady's jewelry for dressing, &c." It is said in Bouvier, supra, "From analogy to the foregoing articles, it will be obvious that the term baggage must comprehend an almost infinite number and variety of articles not enumerated here." An opera glass is as useful to the traveler as a "few books for amusement," or more so. That the trip from Toledo to Peru was made in the night, can make no difference. Articles for use as baggage at the end of the journey or during a temporary stay at a particular place are as properly baggage as those actually used in the transit. We think the court below committed no error in allowing the evidence to go to the jury. It is insisted that the evidence does not support the verdict. It is admitted that there is a conflict in it, but it is claimed Myrick v. The Board of Commissioners of Montgomery County. that the preponderance is so strongly in favor of the appellant that the court erred in overruling the motion for a new trial. We do not think so. Hammond, the appellee, swears positively that he shipped the trunk at Toledo for Peru. He was going there himself. Unlike the baggage-master, his attention was not divided between that and a large number of other trunks. Moreover, it would be perfectly natural that Hammond should have his mind fixed on Peru, the place of his destination; but the baggage-master would only have his mind called to the place by a single statement from the shipper. The chances are two to one that Hammond was right, and the other witnesses were wrong. But be this as it may, we cannot, under the rule of law on the subject, interfere with the finding of the jury, sanctioned as it is by the action of the court in which the case was tried. Judgment affirmed, with costs. W. Z. Stuart, for appellant. MYRICK V. THE BOARD OF COMMISSIONERS OF MONTGOMERY COUNTY. COUNTY TREASURER.— Commission for Disbursing School Tax.-Statute Construed. The provision of section 107 of the school law (3 Stat., Davis, 461) allowing to county treasurers a commission of one per cent. "on the amount of school tax disbursed," refers not only to the tax levied by the State, to be used exclusively for tuition, but also to that levied by the townships, under section 12 of said act, to be expended for building school houses, &c. SAME.-Taxes Returned Delinquent by Mistake.-Where a county treasurer by mistake returned as delinquent certain taxes which had been paid, and such taxes, with the ten per cent. penalty added thereto, were carried to the tax duplicate for the next year; and said treasurer on his final settlement with the county board, paid over, under protest, the amount of said penalty, never collected by him: Myrick v. The Board of Commissioners of Montgomery County. Held, that he was entitled to recover, in an action against said board, the amount so paid under protest. APPEAL from the Montgomery Common Pleas. Suit by the appellant against the appellees. The complaint consisted of two paragraphs. The first alleged, that in the years 1867 and 1868, the appellant was treasurer of Montgomery county, duly qualified and acting as such; that as such treasurer he disbursed special school tax in 1867 to the amount of fourteen thousand two hundred and forty-one dollars, and in 1868 to the amount of fifteen thous and seven hundred and five dollars, for which he was and is entitled by law to one per cent. for his fees for so disbursing said tax, which said board refused to allow him, in his final settlement, amounting to three hundred dollars. The second paragraph alleged, that said board was indebted to him in the sum of one hundred dollars for so much money paid by him to said board against his protest, in his final settlement with said board, the same being ten per cent. penalty added to taxes amounting to one thousand dollars returned delinquent, which had been paid, and returned delinquent through mistake of plaintiff. A demurrer to both paragraphs of the complaint for want of sufficient facts was sustained, and the appellant excepted. The appellant failing to answer, judgment was rendered against him for costs. FRAZER, J.-The one hundred and seventh section of the school law (3 Stat., Davis, 461) allows to county treasurers one per cent. "on the amount of school tax disbursed." A question in the case before us is, whether by this provision the treasurer is entitled to the commission of one per cent. upon taxes levied by the townships for building school houses, &c., authorized by section twelve of the same act. This is a question of construction. The general school law, of which the sections above referred to are a part, provides for only two kinds of taxes for school purposes; one levied by the State, to be used ex Myrick v. The Board of Commissioners of Montgomery County. clusively for tuition; the other to be levied by the townships and to be expended for buildings, furniture, apparatus, fuel, and other incidentals. The first of these taxes is denominated "school revenue for tuition" (sec. 2), but elsewhere in the act called "school revenue" (secs. 116, 117, 118, 123). It is also called, in one instance (sec. 111), "school tax." The other is denominated "the special school revenue" (sec. 12), though it is elsewhere called in the act "special school tax" (secs. 13, 17) and "special tax for school house erection" (sec. 21). Both taxes are for school purposes, and each can properly be called a "school tax;" and we are of the opinion that the use of that language in sec.. 107 of the act was intended to comprehend both. Such is the natural import of the words; and it is impossible to imagine a reason which could have influenced the legislature to enact that the treasurer should be allowed a commission upon one of them for disbursing it, and be denied it upon the other. The use of the same words in a singleinstance in the same act, to designate only the tax levied. for tuition, has been noticed, but it is not, in our opinion, convincing that they were used in the same sense in the section which we are required to construe. Nor can we discover, what is suggested in argument for the appellee, that the context indicates that the words as used in sec. 107 refer only to tax for tuition. The sections preceding and succeeding it do not relate at all to either of these taxes. We are led to the conclusion, therefore, that the court below erred in sustaining the demurrer to the first paragraph of the complaint, The treasurer, by mistake, returned as delinquent taxes to the amount of one thousand dollars which had actually been paid. These taxes were, with a penalty of ten per cent. added thereto, carried to the tax duplicate of the next year. Of course, this penalty could not be and was not collected by the treasurer. The question presented by the demurrer to the second paragraph of the complaint is, whether VOL. XXXIII.-25 Lamb, Treasurer, v. Rawles, Executor. the treasurer was, nevertheless, liable for it. It is too plain to need much consideration. The officer could not be required to account for money which never did and never could come to his hands. If he actually kept the county out of one thousand dollars of its money, by returning taxes as delinquent where they were not delinquent, he was liable upon his bond for the misfeasance. But that is a different affair. Reversed, with costs, and remanded, with direction to overrule the demurrer. P. S. Kennedy and R. H. Galloway, for appellant. LAMB, Treasurer, v. RAWLES, Executor. TAX.-Statute Construed.-The word "demands" in the third clause of the twenty-third section of the act to provide for the valuation and assessment of real and personal property and the collection of taxes, &c., 1 G. & H. 68, relates only to such demands as the law will recognize and enforce; and no contract by which a liability is created after the first day of January can relate back so as to make the creditor liable to be taxed for that year for such demand. APPEAL from the Fountain Circuit Court. ELLIOTT, J.-This was a suit commenced by Robert Hetfield against William Lamb, treasurer of Fountain county, to enjoin the collection of certain taxes, claimed to have been illegally assessed against Hetfield. During the pendency of the suit, Hetfield died, and it was revived in the name of David Rawles, his executor. On the final hearing, a perpetual injunction was decreed, in accordance with the prayer of the complaint. Lamb appeals. The only question made in the case is, that the evidence does not sustain the finding and judgment of the court. |