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tablished and constructed under the provi
(74 Oh. St. 403) sions of the act to which this is supplemental, STATE ex rel. WILSON, County Solicitor, v. to cause the same to be cleaned out, widened
LEWIS, County Auditor, et al. or deepened." And section 8 of the act also
THOMAS et al. v. STATE ex rel. GILBERT. was amended in the same year (65 Ohio
(Supreme Court of Ohio. June 26, 1906.) Laws, p. 125); and in 1869 (66 Ohio Laws,
1. TAXATION-TAX INQUISITORS. p. 86), power was granted to township trus
Since it is not within the judicial function tees to remove or cause to be removed, any to give to a statute an operation which the Legdrift, timber, or other obstructions that might
islature does not intend, the act of April 10, hinder the free passage of water in the
1888 (Rev. St. 1906, $$ 1343–1 to 1343–4 incl.),
to authorize the employment of tax inquisitors, natural channel in any stream or streams of
cannot by, interpretation be extended to the water known as living streams of water, four counties in which the act of April 20, 1885 but it was expressly provided that nothing
(Rev. St. 1906, SS 1343a, 1343b), was intended in the act should be construed to interfere
to be operative; the legislative intention to
provide for their concurrent operation being with any milldam or waterworks already con- expressed in the later act. structed or to be constructed upon any 2. STATUTES-GENERAL AND SPECIAL ACTSstream, or the placing of flood gates across CONSTITUTIONAL LAW. any such stream. In 1877 (74 Ohio Laws, p.
The acts relate to a subject of a general
nature, and, there being substantial differences 22) the act of 1869 giving the township trus
in their provisions, they are repugnant to sectees power to remove drift, timber, and tion 26, art. 2 of the Constitution, which reother obstructions from streams, was repealed quires that “all laws of a general nature shall and the power was given to the county com
have a uniform operation throughout the state.” missioners.
[Ed. Note.-For cases in point, see vol. 44,
Cent. Dig. Statutes, § 106.] It seems to be apparent not only from the
(Syllabus by the Court.) provisions of these various acts, but also from the wording of the same, that the Error to Superior Court of Cincinnati. Legislature did not use the word "water- Action by the state, on the relation of one course" in a sense that would include a living
nat would include a living Wilson, county solicitor, against one Lewis, stream, but in the sense of a drain for water. county auditor of Hamilton county, and Mr. Farnham, in his valuable work "Water others. A judgment sustaining demurrer to and Water Rights” (volume 2, c. 19), points the petition was dismissed, and the state out that in many of the early decisions the brings error. Reversed. courts have confused watercourses with
Error to Circuit Court, Montgomery county. ravines and swales, or other natural drains,
Action by the state, on the relation of and says that the two are entirely distinct
Phillip Gilbert, against James R. Thomas and and are controlled by different rules, though
others. Judgment for relator, and defendin some respects the rules with respect to
ants bring error. Affirmed. drainage are the same as those with respect to watercourses, and, further, that a water- In case No. 9,807, State ex rel. Wilson v. course must be a stream of such character Lewis, suit was brought in the superior court as to give rise to riparian rights. The of Cincinnati by the county solicitor to enterm is not used in this sense at all in the
join the further execution of making paylegislation to which we have called attention. ments under a contract entered into between
In the courts below plaintiff in error raised the auditor, treasurer, and commissioners of the question of jurisdiction to enjoin by Hamilton county of one part and H. W. motion to dissolve the temporary injunction Morganthaler of the other; the contract beon the ground that the plaintiff had an ade
ing in substance that said Morganthaler was quate remedy at law. In Haff v. Fuller, 45 employed to ascertain and furnish to the Ohio St. 495, 15 N. E. 479, it is held that the county auditor of Hamilton county facts and final orders of the township trustees establish- evidence necessary to authorize the auditor ing ditches may be reversed by petition in to subject to taxation property improperly error for errors apparent on the record; and
omitted from the tax lists and duplicates, that such procedure and not injunction is the to continue in force from the 17th day of Sepappropriate remedy for the correction of such tember, 1902, to the 11th day of February, errors, and in the opinion it is said that the 1905, and providing for the compensation of same rule applies to the final orders of county said Morganthaler for said services at the commissioners establishing ditches; that the rate of 20 per centum of the money so caused rule has been applied where the errors so to be paid into the treasury. The contract appearing render the proceedings void for was alleged to be void for numerous reasons, want of jurisdiction. In the present case among them that the laws of the state made the want of jurisdiction does not arise from it the duty of the county auditor to ascertain some error appearing on the record of the said facts and discover said evidence, and proceedings, but from want of power in the that therefore the contemplated payments to commissioners to act at all.
Morganthaler would be a misapplication of Judgment affirmed.
public moneys, and that there was no author
ity of law for the making of such contract. SHAUCK, C. J., and PRICE, SPEAR, and In the special term of the superior court DAVIS, JJ., concur.
demurrers to the petition were sustained, and the petition was dismissed. That judgment , duplicate that is liable to taxation, or any was affirmed by the general term.
persons conspiring to wrongfully increase the In case No. 9913, Thomas et al. v. State ex number or amount of any tax omissions, rel. Gilbert, suit was brought in the court shall be deemed guilty of a misdemeanor, and of common pleas by the defendant in error on conviction thereof before any court of against the plaintiffs in error, who are the competent jurisdiction, shall be sentenced acting tax inquisitor and the auditor and by the said court to pay a fine not exceeding treasurer and commissioners of Montgomery two hundred dollars, or be imprisoned in the county, to enjoin the further performance of county jail not exceeding sixty days or both, a like contract for the rendering of like ser- at the discretion of the court, and it is hereby vies in Montgomery county for a like compen- made the duty of the prosecuting attorney sation and to enjoin the further payment of of the county to enforce the provisions of such compensation. The contract was alleged this section." to be void for numerous reasons, among them
Act of 1888. that there was no valid legislation to authorize it, and that the contract purports to give
Sec. 1343–1. “The county commissioners, to said Thomas, the inquisitor, the exclusive county auditor, and county treasurer, or 'a right and entire discretion in the matter of majority of said officers in any county, when investigation and examination for omitted they have reason to believe that there has property. Issues of fact were joined upon not been a full return of property within the which the cause was tried; the record be- county for taxation, shall have power to emfore us being made in the circuit court, to ploy any person to make inquiry and furnish which an appeal had been taken from the the county auditor the facts as to any omisjudgment of the court of common pleas. The sions of property for taxation and the eviconclusion of law reached by the circuit court dence necessary to authorize him to subject was that the statute by which the contract to taxation any property improperly omitted was supposed to be authorized was uncon- from the tax duplicate; no payment to be stitutional and void.
made for such services except in accordance The cases involve both the validity and with the terms of agreement between the interpretation of two acts of the General officers, or a majority of them and such perAssembly touching the employment of tax in- son, and such payment shall be made only quisitors. They are known as the Acts of out of money actually paid into the county 1885 and 1888. Those acts, with their sec- treasury as taxes on such omitted property, tional numbers in the Revised Statutes of and such compensation shall not exceed 20 1906, are as follows:
per cent. of the amount of such taxes, on the
returns of omitted moneys, credits, invest. Act of 1885.
ments in bonds, stocks, joint stocks, annuities Sec. 1343a. "That the county commission- or other valuable interests, held by a resident ers, county auditor and county treasurer, or of this state or by others for him; and ail a majority of said officers of any county in
such allowances shall be apportioned ratably this state containing a city of the first class, by the county auditor among all the funds and in any county containing a city of the entitled to share in the distribution of such first grade of the second class, shall have taxes." full power and final power to employ any Sec. 1343-2. “Any assessor who shall wilperson or persons to ascertain and furnish fully omit to return any property for taxato the county auditor the facts and evidence tion, or any auditor who shall wilfully omit necessary to authorize him to subject to taxa- any property from the tax duplicate that is tion any property improperly omitted from liable to taxation, or any persons conspiring the tax duplicate; no payment for such to wilfully increase the number or amount of services to be made except in accordance with any tax omissions shall, upon conviction the terms of an agreement between the said thereof, pay a fine not exceeding two hundred officers, or a majority of them, and such dollars, or be imprisoned in the county jail person or persons; and such payment shall not exceeding sixty days, or both.” be made to such person or persons only out Sec. 1343–3. "The person or persons with of money actually paid into the county treas- whom the contract provided for in section ury as taxes on such omitted property; and one of this act is made, shall, before entering such compensation shall be apportioned ratab- upon such employment, give bond to the state ly by the county auditor among all the funds in the sum of one thousand dollars, condientitled to share in the distribution of such tioned on the faithful performance of the dutaxes, including the state itself, as well as the ties required by the contract; said bond shall counties, townships, cities, villages, school be approved by a majority of those authordistricts, and other organizations entitled ized to make the appointment and filed with thereto."
the county auditor." Sec. 1343b. "Any assessor in such counties Sec. 1343-4. "This act shall not in any who shall wilfully omit to return any prop- manner affect the provisions of sections one erty for taxation, or any auditor who shall thousand, three hundred and forty-three (a) wilfully omit any property from the tax and one thousand, three hundred and forty
three (b) of the Revised Statutes of Ohio, as enacted April 20, 1885.”
Ireton, Collins, Schoenle & Poor and Horstman & Horstman, for plaintiff in error Wilson. Alfred B. Benedict and Doyle, Lewis & Schaufelberger, for defendant in error Lewis.
Boster & Emanuel, Young & Young, and I. H. Goeke, for plaintiffs in error Thomas and others. McMahon & McMahon, Rowe & Shuey, and Oscar M. Gottschall, for defendant in error Gilbert.
SHAUCK, C. J. (after stating the facts). By allegations of fact in the pleadings, and by propositions of law in numerous briefs and in oral arguments, we are favored with a full and clear presentation of the considerations affecting the validity of the contracts for the employment of tax inquisitors in Hamilton and Montgomery counties. Those considerations conducted the superior court of Cincinnati to the conclusion that the contracts are valid, and the circuit court of Montgomery county to the conclusion that they are void. It will not be practicable, perhaps it would not be profitable, to attend to all those considerations in detail. The points of inquiry may be reached by the observation that there appear to be no substantial doubts respecting the validity of the contracts, except those which concern the constitutional validity of the statutes by which the contracts are supposed to be authorized. These statutes are given in full in the statement of the cases. From a comprehensive view of these statutes and other statutes relating to the taxation of property, it appears to be true, as is urged against the validity of the contracts, that the legislative policy is to charge auditors and assessors with the duty of bringing all taxable property upon the duplicates, vesting them with ample power for that purpose, and providing for their liberal compensation for services so rendered to the public; and then by this particular legislation to offer inducements to remissness in the performance of those duties in order that there may be realized the extraordinary compensation of the inquisitors. This tendency of the acts of 1885 and 1888 is so obvious that it could hardly have escaped the attention of the Legislature even before there had been opportunity to observe their practical operation. That it did not escape attention appears in the provisions of sections 1313b and 1343–2, proposing the possibility of criminal proceedings to check the cupidity excited. But the admission that the wisdom of this reliance has not been vindicated by prosecutions for such remissness will not justify the conclusion that any part of the legislation is void. It must have been solely in view of this aspect of the case that counsel for the inquisitors have so gravely admonished us that we must not, by annulling an act of the Legislature, defeat the will of the people. These acts involve the exercise of no
power that is not legislative, and, however unwise they may appear to be, they must be held valid, unless they are violative of some limitation which the people have imposed upon the exercise of that power. Constitutions not only locate the powers of government, but in important respects they peremptorily prescribe the modes of their exercise. More than a century has passed since Marbury v. Madison, and it would not now be decorous to counsel to assume that they either urge or entertain the view that the will of the people is expressed in acts of legislation which are passed in disregard of limitations which the people have expressly imposed upon their representatives who exercise their legislative power.
In support of the judgment of the circuit court of Montgomery county it is urged that the Acts of 1885 and 1888 are alike violative of the provision of section 26 of article 2 of the Constitution that “all laws of a general nature shall have uniform operation throughout the state.” In support of the judgment of the superior court of Cincinnati it is said that the act of 1888 is reconcilable with that provision of the Constitution, and that it, without aid from the act of 1885, authorizes the contracts whose validity is drawn in question. That taxation as the subject of legislation is of a general nature is established by a uniform course of decisions, and it is practically admitted in the present cases. The act of 1885, by its terms, is operative in but four counties of the state, including Hamilton, and the contention of counsel for the inquisitors is that because of its limited operation it was and is a nullity and not now to be taken into account in the consideration of existing legislation upon the subject. The precise question is: Does the act of 1888 operate uniformly throughout the state? By the terms of the first section of the act (Rev. St. 1906, § 1343-1), leaving out of view the provisions of the last section (Rev. St. 1906, $$ 1343–4), the officers of any county, when they have reason to believe that there has not been a full return of property for taxation, are empowered to contract for the services of an inquisitor. But the operation of the act was not left to the comprehensive terms of its first section. By its fourth section the act of 1885 was brought before the minds of the legislators to be dealt with as an act relating to the same subject-matter. How did they deal with it? Certainly not in the mode which would have been most usual and natural if the later act was intended to be the sole law upon the subject; that is, by the express repeal of the former act which, if continued in force, would prevent the operation of the later act throughout the state. Not only did the Legislature not expressly repeal the earlier act, but care was taken, and apt language was chosen, to prevent the application to it of the legal rules with respect to repeals by implication. Could
we regard ourselves as really attempting thorizing contracts with tax inquisitors, there
county is affirmed.
DAVIS, JJ., concur.
(74 Ohio St. 328) themselves as performing duties enjoined up
KAHLE et al. Y. NISLEY.
(Supreme Court of Ohio. June 12, 1906.) meaning of the Legislature is sought where
TAXATION-FORFEITURE TO STATE-CONVEY
ANCE BY COUNTY AUDITOR. it should always be sought, in the words Where, under section 2899, Rev. St. 1906, which it employs, and if the subject is re- lands have been duly forfeited to the state for garded with a steady vision, it will not ap
the nonpayment of taxes and penalty, a valid pear otherwise than that the concurrent
sale and conveyance of such lands by the coun
ty auditor extinguishes all previous titles there operation of both acts was intended.
to, either legal or equitable, and invests the purFor the purpose of the present case at
chaser with a new and perfect title to said least, it may be conceded that, since all acts
landis, discharged from all previous liens and
incumbrances. relating to the same subject-matter are to [Ed. Note.-For cases in point, see vol. 45, be considered together, acts authorizing the Cent. Dig. Taxation, 88 1465-1469, 1544-1553.) employment of tax inquisitors do, according (Syllabus by the Court.) to their terms, operate throughout the state. But the requirement of the Constitution is
Error to Circuit Court, Putnam County. not merely of operation, but of uniform opera
Action by A. S. Nisley against Frank G.
Kable and Jacob Warnimont. Judgment for tion throughout the state. Regarding the differences in the conditions to official action,
plaintiff was affirmed by the circuit court,
and defendants bring error. and more especially the presence of the limi
judgment for plaintiffs in error. tation upon the compensation of the inquisitors in one, and the absence of such limita- The facts presented by the record in this tion from the other, it is obvious that the
case are as follows: On the third Tuesday of concurrent operation of these acts would not
January, 1896, the following described real be uniform. There appears to be no reason
estate situate in Putnam county, Ohio, to wit: to doubt that the provisions respecting com
The south half of the southeast quarter of secpensation held a prominent place in the
tion fifteen (15) town two (2) north, range six minds of "the people" who prompted this
(6) east, was forfeited to the state of Ohio for legislation. Counsel for the inquisitors nat
nonpayment of the taxes and penalty then urally call State ex rel. v. Crites, 48 Ohio
due thereon. Thereafter, on April 13, 1896,
said real estate was sold at forfeited land St. 143, 26 N. E. 1052, to our attention. It is true that in that case the act of 1888 was,
sale by the auditor of said Putnam county to as against objections there considered, held
one L. E. Blackburn for the sum of $138.92;
this being the amount of taxes and penalty to be constitutional, and it was treated as
against said property then due and unpaid. valid legislation for the purpose of the judg
The auditor issued and delivered to said L. ment in that case. But the considerations
E. Blackburn, purchaser, a certificate of such which conduct us to the conclusion that the
sale, which certificate was afterwards transact is void do not appear to have been in the
ferred by him to one I. E. Gardner. On Janminds of the court in that case. To regard
uary 15, 1898, I. E. Gardner presented said a case as authority upon questions which
certificate to the auditor of Putnam county are not considered tends to the expulsion of
and received from the latter a forfeited land reason from the law. One attempting to rec
deed for said premises. On June 23, 1903, oncile this legislation with the constitutional
said I. E. Gardner, his wife joining therein, requirement here considered would find noth
by deed duly executed, sold, assigned, and ing of support in the case cited. He would quitclaimed all his right, title, interest, and find much adverse doctrine in both earlier
estate in and to said premises, and all rights and more recent cases dependent upon the acquired by him under and by virtue of said consideration and effect of these sections of forfeited tax sale, to the defendant in error, the Constitution. Moreover, State v. Crites A. S. Nisley. Neither of above deeds was ever has not become a rule of property for the filed for record nor recorded in the office of present case. Since there is no law op- the recorder of Putnam county. Neither erating uniformly throughout the state au- L E. Blackburn, to whom said premises were
sold at forfeited land sale, I. E. Gardner, to paid therefor by L. E. Blackburn at the forwhom said premises were conveyed by the feited land sale of April 13, 1896, with interauditor of Putnam county, nor the defend-' est and 50 per cent. penalty, together with the ant in error, A. S. Nisley, to whom said prem- amount paid for certificate of purchase and ises were sold by I. E. Gardner and wife, nor for tax deed. On the trial of the cause in the any one of them, paid the taxes or any part court of common pleas the court found and ther of levied and assessed against said adjudged that the tax sale of April 13, 1896, prenises for the years 1897, 1898, 1899, 1900, was void, and that said A. S. Nisley was not or for either of said years. On the third therefore entitled to recover possession of Tuesday of January, 1899, said lands being said premises. But the court rendered a again delinquent for nonpayment of taxes and judgment in his favor for the amount that penalty for the year 1897, and the taxes for had been paid for said lands at the forfeited the year 1898, and having prior to that date land sale April 13, 1896, with interest thereon been so returned as delinquent and advertised from the date of said sale, and decreed the for sale, were on said third Tuesday of Janu- same to be the first and best lien on said ary, 1899, offered for sale at the courthouse in premises. This judgment was. affirmed by the county of Putnam, by the treasurer of said the circuit court, and plaintiffs in error now county, and not being sold for want of bidders ask a reversal of both of said judgments in were then and there a second time forfeited so far as they allow and decree to A. S. to the state of Ohio. Thereafter, to wit, on Nisley a lien on said lands for the amount April 9, 1900, said lands were again sold at paid therefor, by the assignor of his grantee, forfeited land sale by the auditor of Putnam at the forfeited land sale April 13, 1896. county, and were purchased by Birchard A. Hayes for the sum of $234.43, the taxes and
Bailey & Bailey and B. A. Hayes, for plain
tiffs in error. penalty then due thereon. On December 28,
Chauncey L. Newcomer, for 1900, the auditor of said Putnam county ex
defendant in error. ecuted and delivered to said Birchard A. Hayes a deed for the premises so purchased, CREW, J. (after stating the facts). In which deed was, on the 24th day of July, 1901, the briefs of counsel in this case much conduly filed for record with the recorder of sideration is given the question whether the deeds of said Putnam county and by him duly claim and lien asserted by the defendant in recorded. Birchard A. Hayes, neither at the error, A. S. Nisley, was, at the time he comtime he purchased said premises nor at the menced his action in the court of common time he received the deed therefor, had any pleas, barred by the statute of limitations. notice of the existence of the deed executed In the view we have taken of this case that and delivered by the auditor of Putnam coun- question becomes wholly unimportant and ty to I. E. Gardner. On July 17, 1901, by | need not therefore be considered or discussed deed
of quitclaim, Birchard A. Hayes in this opinion. The decision of this case is and wife sold, assigned, and quitclaimed to controlled, and the propriety of the judgthe plaintiff in error Frank G. Kahle, the ments of the courts below determined, by the then owner and holder of the legal title to effect to be given the auditor's tax deed of said premises as appeared of record, all December 28, 1900, by which the lands intheir right, title, interest, and estate in and volved in the present controversy were conto said premises, together with all rights veyed by the auditor of Putnam county to which they had acquired by virtue of the Birchard A. Hayes, who had theretofore, on amount paid for said lands at forfeited tax | April 9, 1900, purchased the same at forfeited sale. Thereafter, on August 8, 1900, Frank land sale. If the effect of that deed was to G. Kahle, by deed of quitclaim, conveyed the cut off and extinguish all previous liens, and east half of said premises to the plaintiff in to invest the purchaser, from the time of its error, Jacob Warnimont. By virtue of the delivery, with the legal title to said lands aforesaid conveyances to them, Frank G. discharged from all previous liens and incumKahle and Jacob Warnimont claimed title to, brances, then the plaintiff below, A. S. Nisand at the time of the commencement of this ley, was without right to recover in this action were in actual possession of, the whole action, and his petition should have been disof the premises so conveyed. The defendant missed by the trial court. If the forfeited in error, A. S. Nisley, claiming to be the land sale of April 9, 1900, was a valid sale owner of said premises by virtue of the tax and no question is made in this case but title acquired by him from I. E. Gardner, on that it was-it would seem clear under the December 11, 1903, filed his petition in the decision of this court in Jones v. Devore, 8 court of common pleas of Putman county Ohio St. 430, that the deed subsequently exeagainst the plaintiffs in error to recover pos- cuted to Birchard A. Hayes in pursuance of session of said lands. The prayer of the such sale, and the requirements of the statpetition was in the alternative that he might | ute, would operate, and have the effect, to recover the possession of said lands, or, if the divest all prior titles to, and to extinguish court should find he was not entitled to pos- all previous liens upon, the lands so conveysession of the same, that then he be decreed ed. In the above case Scott, J., says: "All to have a lien on said lands for the amount the proceedings under the statute for the sale