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Railway Co. v. Stewart.

íf the limitation is to apply only to levies provided for in chapter 5, title 13, and not to other levies authorized by other general and special siatutes, then the county cominissioners have not exceeded the rates they were authorized to levy.

There is a levy under a special statute, 90 Ohio Local Laws 279, ot eleven and one-half tentos mills for the erection of a new court house. That statute provides in section 2, "that the county commissioners of said county for the purpose of constructing said court house, are hereby authorized to borrow such sums of money as may be necessary, at a rate not exceeding six per cent. per annum, and issue the bonds of the said county to secure the payment of principal and interest thereon, and such interest siall be payable semi-annually at the office of the county treasurer, said bonds shall be issued and sold in all respects in pursuance ofexisting laws, at not less than their face value, and the principal shall be paid at said county treasurer's office at such time as the commissioners shall prescribe, not exceeding nine years after date, and said bonds shall specify the object for which they were issued. The commissioners shall annually, at their June session, levy such amount of taxes as will fully meet the interest on such indebtedness and at least one-ninth of the principal.

It was under this statute that the commissioners made the levy of eleven and one-half tenths mills, and if it is the true construction of the law, that the amount authorized to be levied by this statute is in addition to that which is authorized by the general laws prescribing the rate of taxation, and in no manner reduces the amount which the com missioners may levy for every purpose prescribed by the general statutes, then the levy is not in excess of the rate which the commissioners might levy for general county purposes, and we think this is the true construction of this statute, and it renders it unnecessary for us to examine the levies which are made under other statutes for new roads and election purposes, for they would, probably, as is claimed by counsel for the defendant in error in this case, be governed by the same rule; but whether so or not, if the construction we give to this special statute is the correct one, then the levies are not excessive.

The first clause of the section 2823, prescribes the rate of taxation, and permits, in a county having the taxable value of property of Harrison, a levy for general county purposes of one mill and five-tenths, anć the latter clause of the section permits a levy of six-tenths of a mill, or together two and one-tenth mills or twenty-one tenths mills, and the levies for general county purposes made by the commissioners is eighteen-tenths or one mill and eight-tenths.

It is urged that there is no statement or finding that the levy in the first clause of the section authorized, is deemed insufficient for general county purposes. On the other hand, it is claimed by counsel for the defendant in error that it is to be presumed in favor of the record of the county commissioners that they made a legal levy, and that the construction to be given to the commissioners' record should be a liberal one, such as is given to the records of courts of subordinate or inferior jurisdiction.

The case of Lima v. McBride, 34 Ohio St., 338; an action to compel by mandamus McBride as auditor, to place upon the duplicate a levy made by the county commissioners, the syllabus is :

“1. If two statutes provide for the levy of a road tax, and the recorú of the board of county commissioners, levying such tax is susceptible of a construction which bases the levy equally well on either statute, but as

Harrison Circuit Court.

applied to one the levy is excessive; and applied to the other, is not excessive, such levy will, prima facie, be regarded as based on the latter act, although the tax therein mentioned can only be levied to provide for a particular condition of the roads, while the other act is general, and the levy actually made is in general terms.

“2. Where the county commissioners, intending to make a levy of taxes for road purposes, under the act of April 30, 1869 (66 Ohio L., 60), cause such levy to be entered on the record, in general terms, the tax will not be regarded as invalid, or made under the act of 1877 (74 Ohio L., 92), on the mere ground that the record does not show the existence of facts which warranted the levy under the former act."

Okey, J., in the opinion, says: “Besides the claim, which we hold to be untenable, that even if the taxes were levied under the act of April 30, 1869, they must, under the act of 1877 and sec. 487 of the municipal code, be expended in the municipal corporation, the city further claims that the act of 1877 is general ; that the levy, in the general form set forth in the record, is a substantial compliance with that act; that the time specified for making the levy, that is, at a special session in May, 1877, was directory; that if the amount levied and collected was in excess of that authorized by the act, the county auditor could not interpose the objection in this case; that the act of April 30, 1869, has relation to a special condition of things, of the existence of which nothing appears in the record; and therefore, that it necessarily follows the levy was made under the act of 1877.

“ Admitting the premises, does the conclusion follow that this was

a levy under the act of 1877, and not under the act of April 30, 1869 ? Possibly it is true that naming the time for making the levy was not a limitation on the authority of the commissioners, and it may also be true that the auditor could not avail himself of the defense that the amount levied is in excess of that authorized by law (31 Ohio St., 432); but in the construction of these acts, in determining whether the levy was made under the act of 1877 or that of 1869, the fact that the levy was made at the time and for an amount expressly authorized by the act of 1869, while it was not made at the time directed in the act of 1877, and was in excess of the levy authorized thereby, is of great importance. "When an instrument is susceptible of two conflicting probable constructions, the court will adopt the construction which is most consistent with good faith, and will hold that such construction was intended by the parties; and this rule of construction applies to cases where an act or fact is fairly susceptible of two interpretations, one lawful and the other unlawful.' 2 Wharton Ev., paragraph 1249.

"The commissioners of the county constitute a board, and the county auditor is their secretary, who is required to 'keep an accurate record of all their corporate proceedings.' 67 Ohio L. 104. The proceedings of the board are, in many respects, those of a court of special and inferior jurisdiction. In Anderson v. Commissioners, etc., 12 Ohio St, 635-643, it was said: “The limited record they direct to be made is to be considered evidence of the establishment of the road, although unaccompanied by proof of the essential requisites to the exercise of the jurisdiction conferred.' The same principle is recognized in Beebe v. Scheidt, 13 0. S. 406, Corry v. Gaynor 22 O. S. 584; McClellan v. Miller, 28 O. S. 488 ; Frever: v. Finfrock 31 O. S. 621.

"in this case it appears the commissioners were clothed with authority to levy taxes for road and bridge purposes. They met as a board at the time directed in the act of April 30, 1869, took the subject of a levy

Railway Co v St wart.

for road purposes under that act into consideration, and made a levy for the purpose, general in terms, in excess of that authorized by the act of 1877, but within the act of 1869, which was the statute upon which they intended to base their action. Consequentiy, it appears the matter was within the jurisdiction of the board. The autaorities above mentioned, though referring to judicial action, are applicable; and, moreover they are in accordance with the general rule. "Judicial officers, though of special and limited jurisdiction, will be presumed to have acted regulariy as to ell matters within their jurisdiction, unless the record shows to the contrary.' 2 Wharton Ev., $ 1308.2 Best's Ev., § 380.

While the levying of taxes is a 'egislative power (Cooley on Taxation, 33), the record of the officers making the levy will receive at least as favorable consideration as the records of an interior judicial tribunal. In the well considered case of West School District 7. Mersiils, 12 Conn. 437, it was said. "There is no rule of law which requires any formaí technical statement of the objects for which the money is to be raised. All that can be required in respect to such statement, to render the vote prima facie legal, is that it chould appear from the vote, with reasonable certainty that the tar is laid for a purpose authorized by 'aw. The same view is strongiy enforced in Adams v. Hyde, 27 Vt. 231; Blodgett v. Holbrook, 39 Vt. 336; West v. Whittaker, 37 Iowa 538."

We are therefore of opinion that the county commissioners in this case tere not required to say that in their judgment theamount prescribed in the first paragraph of the section was insufficient for general county purposes, but they, having kept within the limits of the law which they might levy, under the circumstances prescribed in the section the levy is not excessive.

We do not deem it necessary to follow out further the cuestions raised as to the legality of the levy for general county purpose.. view of the case we hold the commissioners acted within the authority given them by section 2823 of the Revised Statutes, and that the provisions or limitations in that section do not in any manner interfere with the duty and the right of the county commissioners to make the levy directed by local and other general statutes, and thit in making the levy they were not without authority, and their action is legal.

As to the second question, is the defendant liable for a penalty of ten per centum on th amount of taxes that was legally assessed.

It is admitted that the township levies, or some of them, which were included in the demand made, were excessive and the levy therefors illegal. We are unable to find any adjudicated Ohio case in point.

We have been referred in argument to an opinion of Judge Nye in the common pleas court of Lorain county, Ward, Treasurer, v. The Whee. ing @ Lake Erie Railway, 4 Dec. 154, in which in the sylabus it is said,

In a township where the taxes are excessive in some particulars, 200 for that reason the railroad company refused to pay or tender any part of its taxes, whether the penalty should be added. Query?”

juage: Nye, in the opinion, says: "Waile I ain la serious doubt as to the law wita reference to requiring the detendant to pay the penalty upon townships where the taxes are excessive, I have decided to focow če rule laiá down. For equity cases, aná require the defendant in this ese tu pov the penalty for th : sazie reason, that it made no tender of the amount that it admitted to be di.."

We have also been referred or citea te a lumber of cases in Ohio, bu“. uone or item, in our judgment, involve the guestions raised in this case.

Harrison Circuit Court.

We are cited to the case of Groesbeck v. Cincinnati et al., in the 51 Ohio St., 365. In reading the opinions or decisions of the court we must bear in mind in considering the language used, the question that is under consideration and we must apply the language used to the case that is then at bar and which the court is determining.

The syllabus of the case is “An ordinance of a city, assessing on the property abutting on a street more than is required to pay the cost of the improvement of the street is, as to excess of the assessment over the cost of the improvement, illegal; and, having been paid by the property owner, an action to recover back such excess under section 5848, Revised Statutes, must be commenced within one year after such payment. The fact that the passage of the ordinance was induced by a mistake in the calculation of the cost of the improvement, and that payment was made in ignorance of such mistake, will not have the effect to save the action from the limitation provided for in said section.”

We think the authorities referred to in support of the judg. ment of the court below, that the defendant below should have tendered the amount which it admitted to be due, do not at all decide the question or assist us in deciding it.

The plaintiff in error claims that if the amount admitted to be due had been tendered, the treasurer could not have received it, and in support of that proposition counsel cite Revised Statutes, secticas 1091, 1092 and 1093. Section 1091 reads: "Each person charged with taxes on a tax duplicate in the hands of a county treasurer, may pay the full amount of such taxes on or before the twentieth day of December, or one-half thereof on or before the twentieth day of December, and the remaining half thereof on or before the twentieth day of June next ensuing; but all road taxes so charged, shall be paid prior to the twentieth day of December."

Section 1092. “When taxes charged against the property of any person, are paid by installments, as aforesaid, each of such payments, exclusive of road taxes, shall be apportioned among the several funds for which taxes have been assessed, in their proper proportions."

Section 1093. “When a person desires to pay only a proportion of any tax charged on real estate, otherwise than in installments, as aforesaid, such person shall pay a like proportion of all the taxes charged thereon for state, county, township or other purpose, exclusive of road taxes; and no person shall be permitted to pay one or more of said taxes, without paying the others in like proportion, except only when the collection of some particular tax is legally enjoined.

The query is, to what does section 1093 apply?

Can a pa'y under that section of the statute, for instance, pay the county taxes and refuse to pay the township taxes? Can he select out. under the provisions of that section and say, I desire to pay such proportion which I admit to be legal and refuse to pay the other?

We think that section applies only where a taxpayer desires to pay a proportion of the taxes assessed and levied for all purposes as where he is a part owner and not where he admits that part is legal and desires to pay the legal taxes assessed and desires not to pay the portion which he claims to be illegal, and that the only provision of the statute under which a person may select one levy, as for instance a levy made by the county commissioners, and refuse to pay a levy made by the township trustees or vice versa, on the claim that one is legal and the other illegal is under the provisions of section 5851 of the Revised

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Railway Co. v. Stewart,

Statutes, which provides: “If the plaintiff in an action to enjoin the collection of taxes or assessments, admit a part thereof to have been legally levied, he must first pay or tender the sum admitted to be due; if an order of injunction be allowed, an undertaking must be given as in other cases; and the injunction shall be a justification of the officer charged with the collection of such taxes or assessments for not collecting the same."

It is true as is said in argument that before the taxpayer can enjoin he must tender that which he admits to be legal and due.

That may be founded upon either of two principles.

One was stated by counsel for defendant in error in argument, that before a man can appeal to equity he must do equity, that he must tender the amount admitted to be due.

But probably it rests upon another and more substantial basis and one of more certainty, that a person is not permitted, because he questions a small amount of the assessment, admitting the greater portion to be due, to litigate the question and hold in his hands unpaid that which he admits to be due, and when he appeals to a court, before the court will give him a remedy in cases of this kind, he must pay the amount which he admits to be due. But there is another provision of the statute which as

we think applies to cases of this character.

The law does not intend that a man shall pay money which is not due from him and take the risk of collecting it back with the officer answering that the payment was voluntary, unless it is necessary to do so in order to protect his property; where the officer is proceeding in a summary manner to collect the taxes, then he may either pay it under protest and recover it back or he may himself appeal to the courts; but where the officer is not threatening to proceed summarily, and is appealing to the law, as he may and frequently does for his own protection, the law makes ample provision for the payment of the amount admitted to be due.

Section 5320, Rev. Stat., provides: “When all or part of one or more of the causes of action are not put in issue by answer, judgment may be taken as upon default, for so much of the plaintiff's demand as is not put in issue by tile answer, upon any or all of the causes of action, without prejudice to the rights of the plaintiff as to that portion of his demand disputed; ard if, in the determination of any cause, the taking an account, proof of a fact, or the assessment of damages is necessary, the court may take the account, hear the proof, or assess the damages, or may refer the case to a reeree or master for sucli purpose, or direct the maiter to be ascertained by a jury as the case may require.”

The officer, probably for his own protection, instead of taking the summary mode of collecting by distress, appeals to the courts in this case and when the defendant answers, he has the right to take judgment as upon default, for the part admitted to be due, and litigate the portion claimed to be excessive or illegal.

It is said again, that no tender was necessary from the fact that the county treasurer could not have received the amount which was admitted to be due if there had been an offer or tender unless the party had paid upon that which was illegal and unlawful an equal amount with that which is lawful, and that the law will not require a vain thing; it will not require a tender where the party cannot or will not receive the tender if made. We are referred to the

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