Williams v. Stearns et al., Partners. It is also insisted by council for the defendants that the trial court erred in admitting the declarations of Harmon to establish his authority as agent. Upon the trial of issues of this character it is competent to show that the alleged agent assumed to act in a representative capacity, but his declarations are not competent to maintain the allegation as to his authority. Perhaps this distinction was not consistently observed in the admission of evidence, but we cannot see that there was prejudicial error in view of the instruction given to the jury upon the precise point. That the rule might have been stated with more clearness is true, but it was given in the language requested by counsel for the defendants, and the jury could hardly have failed to understand that the authority of an agent cannot be established by his own declarations. Judgment affirmed. Lewis, Auditor, v. State ex rel. Mullikan. LEWIS, AUDITOR, v. STATE EX REL. MULLIKAN. Taxation-Mistake in valuation of real estate-By annual or decennial appraiser-Duty of county auditor-Section 1038 Revised Statutes. 1. Where, by reason of a mistake made by an annual assessor or by a decennial appraiser of real estate, or in the office of a county auditor, in the course of transferring their reports to the tax list in his office, the appraisement of a new structure is fixed at a sum greater than that intended to be placed on it, by either the annual assessor or decennial appraiser, it is the duty of the county auditor, under section 1038, Revised Statutes, to correct the error upon the tax list in his office for the current year and to report the matter to the board of county commissioners for their action under the same statute. 2. In such case it is the duty of the county auditor to act, when satisfied that an error has occurred, although some of the facts necessary to establish the error do not appear on the records of his office, but are shown by parol evidence only. (Decided October 11, 1898.) ERROR to the Circuit Court of Hamilton county. This action was brought by the relator, Mrs. Katherine C. Mullikan, defendant in error, against the plaintiff in error as auditor of Hamilton county, to require him as such auditor, to correct an erroneous valuation upon valuation upon certain real estate owned by her, and to require said auditor to call the matter to the attention of the county commissioners that they might order a refunder of the taxes paid by her for the five preceding years on this overvaluation. The relator prevailed in the circuit court and the cause is brought here by the county auditor. The facts will be stated in the opinion. Rendigs, Foraker & Dinsmore, County Solicitors. for plaintiff in error. Lewis, Auditor, v. State ex rel. Mullikan. See O. R. Statutes, sections 1038, 2800, 2801, 2802, 2753, 2755, 2786, 2790, 2789, 2798, 2813, 2814. That there is a limitation upon the power of the county auditor, in correcting the duplicate and issuing refunders, can not be doubted. The legislative scheme of taxation, as set forth in the statutes, does not give to the auditor unlimited authority. This is apparent from the fact that section 1038 enumerates certain errors which it is within the power of the auditor to correct. This section is now substantially in the same form as it was after the amendment of January 16, 1873, when it was the subject of consideration by the Supreme Court in the case of The State of Ohio v. Board of Commissioners, 31 Ohio St., 271. Ever since this decision of the Supreme Court, it has been customary to draw a distinction between clerical and fundamental errors, when considering the authority of the auditor, under the provisions of section 1038. The court, however, in this case, did not attempt to define either term, but left the matter with a mere statement of the fact. The same section was again before the court in the case of Insurance Co. v. Cappeller, 38 Ohio St., 560; The State ex rel. Poe v. Raine, 47 Ohio St., 447; The Barney & Smith Mfg. Co. v. Comrs., 29 W. L. B., 366. The same subject was thoroughly examined by Judge Shroder, of the common pleas court of Hamilton county, in a number of cases submitted to him by the present attorney for the defendant in error in this case. These cases are as follows: Comrs., 21 W. L. B., 315; Chatfield & Woods v. 21 W. L. B., 316; Harte v. Comrs., 21 W. L. B., 317; Tatem v. Comrs., 21 W. L. B., 317; Derby v. Comrs., 21 W. L. B., 317; Lewis, Auditor, v. State ex rel. Mullikan. Wagner v. Zumstein, Treas., 21 W. L. B., 318; Gibson v. Zumstein, Treas., 21 W. L. B., 318; Lackman v. Zumstein, Treas., 21 W. L. B., 319; Mitchell v. Comrs., 22 W. L. B., 292. The same principle was followed in the following cases: State of Ohio ex rel. v. Brewster, 11 W. L. B., 39; 9 Ohio Dec. R., 125; Sandheger v. Comrs., 9 W. L. B., 20; 7 Ohio Dec. R., 569; Bridge Co. v. Comrs., 9 W. L. B., 16; 7Ohio Dec. R., 564; Perin, Executor v. Comrs., 6 W. L. B., 673, 6 Ohio Dec. R., 1085; Ives v. Comrs., 6 W. L. B., 697; 6 Ohio Dec. R., 1079; State ex rel. v. Cappeller, 5 W. L. B., 833; 6 Ohio Dec. R., 1015. Frederick Hertenstein, for defendant in error. See O. R. Statutes, sections 2786, 2789, 2798, 2790, 2813, 2814, 2753. The What authority had the auditor for adding the valuation of $2,000, as returned by the annual assessor of 1891 ? This return was before the annual county board at its session in 1891. · As appears from its minutes, the board did not order this return to be placed on the duplicate. board acted in a dual capacity as an annual and as a decennial board. The board was constantly viewing and equalizing property, and no doubt con· templated to include in its final return as a decennial board, in November, 1891, the return of the annual assessors for 1891 as to new structures. The omission to order the returns of the annual assessors as to new structures to be added can not be explained upon any other theory. The auditor could not add because he was of the opinion that the property of the defendant in error was undervalued. That question was decided in Humphreys v. Safe Deposit Company, 29 Ohio St., 608. Lewis, Auditor, v. State ex rel. Mullikan. The statute section 2802 does not apply to the case under discussion. The property of the defendant in error was returned by the decennial assessor as a finished structure; the board did not see fit to order the amount returned by the annual assessor, which was included in the return of the decennial assessors, to be placed upon the duplicate. The board knew from an inspection of the return of the decennial assessor, as well as from an inspection of the premises in April, 1891, made before the return of the annual assessor in 1891, that the decennial assessor had returned the structure of plaintiff as a finished structure. It was for that reason that the board did not order the return of the annual assessor for 1891 to be added. The action of the board is equivalent to saying to the auditor "we find that the return of the assessor for 1891 should not be added; his return is covered by that of the decennial assessor, and to add it is to assess the taxpayer twice for the same property." The auditor can not review this action of the board. The action of the board is final and conclusive. If we have shown that the auditor had no power to add the return of the assessor for 1891, then it must follow that the error was made in transcribing the minutes of the boards of equalization. BRADBURY, J. There is no dispute in this case over the facts. It is clear that the relator's property stands on the books of the county auditor at a valuation $2,000 greater than it should stand. The contention relates first to the power of the county auditor to correct his duplicate, for the current year and second as to his duty to call the matter to the attention of the county commissioners, |