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tablished and constructed under the provisions of the act to which this is supplemental, to cause the same to be cleaned out, widened or deepened." And section 8 of the act also was amended in the same year (65 Ohio Laws, p. 125); and in 1869 (66 Ohio Laws, p. 86), power was granted to township trustees to remove or cause to be removed, any drift, timber, or other obstructions that might hinder the free passage of water in the natural channel in any stream or streams of water known as living streams of water, but it was expressly provided that nothing in the act should be construed to interfere with any milldam or waterworks already constructed or to be constructed upon any stream, or the placing of flood gates across any such stream. In 1877 (74 Ohio Laws, p. 22) the act of 1869 giving the township trustees power to remove drift, timber, and other obstructions from streams, was repealed and the power was given to the county commissioners.

It seems to be apparent not only from the provisions of these various acts, but also from the wording of the same, that the Legislature did not use the word "watercourse" in a sense that would include a living stream, but in the sense of a drain for water. Mr. Farnham, in his valuable work "Water and Water Rights" (volume 2, c. 19), points out that in many of the early decisions the courts have confused watercourses with ravines and swales, or other natural drains, and says that the two are entirely distinct and are controlled by different rules, though in some respects the rules with respect to drainage are the same as those with respect to watercourses, and, further, that a watercourse must be a stream of such character as to give rise to riparian rights. The term is not used in this sense at all in the legislation to which we have called attention.

In the courts below plaintiff in error raised the question of jurisdiction to enjoin by motion to dissolve the temporary injunction on the ground that the plaintiff had an adequate remedy at law. In Haff v. Fuller, 45 Ohio St. 495, 15 N. E. 479, it is held that the final orders of the township trustees establishing ditches may be reversed by petition in error for errors apparent on the record; and that such procedure and not injunction is the appropriate remedy for the correction of such errors, and in the opinion it is said that the same rule applies to the final orders of county commissioners establishing ditches; that the rule has been applied where the errors so appearing render the proceedings void for want of jurisdiction. In the present case the want of jurisdiction does not arise from some error appearing on the record of the proceedings, but from want of power in the commissioners to act at all. Judgment affirmed.

SHAUCK, C. J., and PRICE, SPEAR, and DAVIS, JJ., concur.

(74 Oh. St. 403)

STATE ex rel. WILSON, County Solicitor, v. LEWIS, County Auditor, et al. THOMAS et al. v. STATE ex rel. GILBERT. (Supreme Court of Ohio. June 26, 1906.) 1. TAXATION-TAX INQUISITORS.

Since it is not within the judicial function to give to a statute an operation which the Legislature does not intend, the act of April 10, 1888 (Rev. St. 1906, §§ 1343-1 to 1343-4 incl.), to authorize the employment of tax inquisitors, cannot by interpretation be extended to the four counties in which the act of April 20, 1885 (Rev. St. 1906, §§ 1343a, 1343b), was intended to be operative; the legislative intention to provide for their concurrent operation being expressed in the later act.

2. STATUTES-GENERAL AND SPECIAL ACTSCONSTITUTIONAL LAW.

The acts relate to a subject of a general nature, and, there being substantial differences in their provisions, they are repugnant to section 26, art. 2 of the Constitution, which requires that "all laws of a general nature shall have a uniform operation throughout the state." [Ed. Note. For cases in point, see vol. 44, Cent. Dig. Statutes, § 106.]

(Syllabus by the Court.)

Error to Superior Court of Cincinnati.

Action by the state, on the relation of one Wilson, county solicitor, against one Lewis, county auditor of Hamilton county, and others. A judgment sustaining demurrer to the petition was dismissed, and the state brings error. Reversed.

Error to Circuit Court, Montgomery county. Action by the state, on the relation of Phillip Gilbert, against James R. Thomas and others. Judgment for relator, and defendants bring error. Affirmed.

In case No. 9,807, State ex rel. Wilson v. Lewis, suit was brought in the superior court of Cincinnati by the county solicitor to enjoin the further execution of making payments under a contract entered into between the auditor, treasurer, and commissioners of Hamilton county of one part and H. W. Morganthaler of the other; the contract being in substance that said Morganthaler was employed to ascertain and furnish to the county auditor of Hamilton county facts and evidence necessary to authorize the auditor to subject to taxation property improperly omitted from the tax lists and duplicates, to continue in force from the 17th day of September, 1902, to the 11th day of February, 1905, and providing for the compensation of said Morganthaler for said services at the rate of 20 per centum of the money so caused to be paid into the treasury. The contract was alleged to be void for numerous reasons, among them that the laws of the state made it the duty of the county auditor to ascertain said facts and discover said evidence, and that therefore the contemplated payments to Morganthaler would be a misapplication of public moneys, and that there was no authority of law for the making of such contract. In the special term of the superior court 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.

In case No. 9913, Thomas et al. v. State ex rel. Gilbert, suit was brought in the court of common pleas by the defendant in error against the plaintiffs in error, who are the acting tax inquisitor and the auditor and treasurer and commissioners of Montgomery county, to enjoin the further performance of a like contract for the rendering of like servies in Montgomery county for a like compensation and to enjoin the further payment of such compensation. The contract was alleged to be void for numerous reasons, among them that there was no valid legislation to authorize it, and that the contract purports to give to said Thomas, the inquisitor, the exclusive right and entire discretion in the matter of investigation and examination for omitted property. Issues of fact were joined upon which the cause was tried; the record before us being made in the circuit court, to which an appeal had been taken from the judgment of the court of common pleas. The conclusion of law reached by the circuit court was that the statute by which the contract was supposed to be authorized was unconstitutional and void.

The cases involve both the validity and interpretation of two acts of the General Assembly touching the employment of tax inquisitors. They are known as the Acts of 1885 and 1888. Those acts, with their sectional numbers in the Revised Statutes of 1906, are as follows:

Act of 1885.

Sec. 1343a. "That the county commissioners, county auditor and county treasurer, or a majority of said officers of any county in this state containing a city of the first class, and in any county containing a city of the first grade of the second class, shall have full power and final power to employ any person or persons to ascertain and furnish to the county auditor the facts and evidence necessary to authorize him to subject to taxation any property improperly omitted from the tax duplicate; no payment for such services to be made except in accordance with the terms of an agreement between the said officers, or a majority of them, and such person or persons; and such payment shall be made to such person or persons only out of money actually paid into the county treasury as taxes on such omitted property; and such compensation shall be apportioned ratably by the county auditor among all the funds entitled to share in the distribution of such taxes, including the state itself, as well as the counties, townships, cities, villages, school districts, and other organizations entitled thereto.'

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Sec. 1343b. "Any assessor in such counties who shall wilfully omit to return any property for taxation, or any auditor who shall wilfully omit any property from the tax

persons conspiring to wrongfully increase the number or amount of any tax omissions, shall be deemed guilty of a misdemeanor, and on conviction thereof before any court of competent jurisdiction, shall be sentenced by the said court to pay a fine not exceeding two hundred dollars, or be imprisoned in the county jail not exceeding sixty days or both, at the discretion of the court, and it is hereby made the duty of the prosecuting attorney of the county to enforce the provisions of this section."

Act of 1888.

Sec. 1343-1. "The county commissioners, county auditor, and county treasurer, or a majority of said officers in any county, when they have reason to believe that there has not been a full return of property within the county for taxation, shall have power to employ any person to make inquiry and furnish the county auditor the facts as to any omissions of property for taxation and the evidence necessary to authorize him to subject to taxation any property improperly omitted from the tax duplicate; no payment to be made for such services except in accordance with the terms of agreement between the officers, or a majority of them and such person, and such payment shall be made only out of money actually paid into the county treasury as taxes on such omitted property, and such compensation shall not exceed 20 per cent. of the amount of such taxes, on the returns of omitted moneys, credits, investments in bonds, stocks, joint stocks, annuities or other valuable interests, held by a resident of this state or by others for him; and all such allowances shall be apportioned ratably by the county auditor among all the funds entitled to share in the distribution of such taxes."

Sec. 1343-2. "Any assessor who shall wilfully omit to return any property for taxation, or any auditor who shall wilfully omit any property from the tax duplicate that is liable to taxation, or any persons conspiring to wilfully increase the number or amount of any tax omissions shall, upon conviction thereof, pay a fine not exceeding two hundred dollars, or be imprisoned in the county jail not exceeding sixty days, or both."

Sec. 1343-3. "The person or persons with whom the contract provided for in section one of this act is made, shall, before entering upon such employment, give bond to the state in the sum of one thousand dollars, conditioned on the faithful performance of the duties required by the contract; said bond shall be approved by a majority of those authorized to make the appointment and filed with the county auditor."

Sec. 1343-4. "This act shall not in any manner affect the provisions of sections one thousand, three hundred and forty-three (a) and one thousand, three hundred and forty

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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 1343b 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 a 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 interpretation if we should conclude that the Legislature intended to nullify the former act by providing that it should not in any manner be affected? The suggestion that the General Assembly knew that the former act was void because of its limited operation, and that the words by which it was saved are therefore regarded as meaningless, is inadmissible, for it would be an imputation of ethical obliquity. It is both just and decorous to assume that in both enactments the members of the Legislature regarded themselves as performing duties enjoined upon them by the Constitution and by their oaths to support that instrument. If the meaning of the Legislature is sought where it should always be sought, in the words which it employs, and if the subject is regarded with a steady vision, it will not appear otherwise than that the concurrent operation of both acts was intended.

For the purpose of the present case at least, it may be conceded that, since all acts relating to the same subject-matter are to be considered together, acts authorizing the employment of tax inquisitors do, according to their terms, operate throughout the state. But the requirement of the Constitution is not merely of operation, but of uniform operation throughout the state. Regarding the differences in the conditions to official action, and more especially the presence of the limitation upon the compensation of the inquisitors in one, and the absence of such limitation from the other, it is obvious that the concurrent operation of these acts would not be uniform. There appears to be no reason to doubt that the provisions respecting compensation held a prominent place in the minds of "the people" who prompted this legislation. Counsel for the inquisitors naturally call State ex rel. v. Crites, 48 Ohio St. 143, 26 N. E. 1052, to our attention. It is true that in that case the act of 1888 was, as against objections there considered, held to be constitutional, and it was treated as valid legislation for the purpose of the judgment in that case. But the considerations which conduct us to the conclusion that the act is void do not appear to have been in the minds of the court in that case. To regard a case as authority upon questions which are not considered tends to the expulsion of reason from the law. One attempting to reconcile this legislation with the constitutional requirement here considered would find nothing of support in the case cited. He would find much adverse doctrine in both earlier and more recent cases dependent upon the consideration and effect of these sections of the Constitution. Moreover, State v. Crites has not become a rule of property for the present case. Since there is no law operating uniformly throughout the state au

thorizing contracts with tax inquisitors, there is none which operates anywhere.

In State ex rel. Wilson v. Lewis, the judgment of the superior court of Cincinnati is reversed.

In Thomas v. State ex rel. Gilbert, the judgment of the circuit court of Montgomery county is affirmed.

PRICE, CREW, SUMMERS, SPEAR, and DAVIS, JJ., concur.

(74 Ohio St. 328)

KAHLE et al. v. NISLEY. (Supreme Court of Ohio. June 12, 1906.) TAXATION-FORFEITURE TO STATE-CONVEYANCE BY COUNTY AUDITOR.

Where, under section 2899, Rev. St. 1906, lands have been duly forfeited to the state for the nonpayment of taxes and penalty, a valid sale and conveyance of such lands by the county auditor extinguishes all previous titles thereto, either legal or equitable, and invests the purchaser with a new and perfect title to said lands, discharged from all previous liens and incumbrances.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, §§ 1465-1469, 1544-1553.1 (Syllabus by the Court.)

Error to Circuit Court, Putnam County. Action by A. S. Nisley against Frank G. Kahle and Jacob Warnimont. Judgment for plaintiff was affirmed by the circuit court, and defendants bring error. Reversed, and judgment for plaintiffs in error.

The facts presented by the record in this case are as follows: On the third Tuesday of January, 1896, the following described real estate situate in Putnam county, Ohio, to wit: The south half of the southeast quarter of section fifteen (15) town two (2) north, range six (6) east, was forfeited to the state of Ohio for nonpayment of the taxes and penalty then due thereon. Thereafter, on April 13, 1896, said real estate was sold at forfeited land sale by the auditor of said Putnam county to one L. E. Blackburn for the sum of $138.92; this being the amount of taxes and penalty against said property then due and unpaid. The auditor issued and delivered to said L. E. Blackburn, purchaser, a certificate of such sale, which certificate was afterwards transferred by him to one I. E. Gardner. On January 15, 1898, I. E. Gardner presented said certificate to the auditor of Putnam county and received from the latter a forfeited land deed for said premises. On June 23, 1903, said I. E. Gardner, his wife joining therein, by deed duly executed, sold, assigned, and quitclaimed all his right, title, interest, and estate in and to said premises, and all rights acquired by him under and by virtue of said forfeited tax sale, to the defendant in error, A. S. Nisley. Neither of above deeds was ever filed for record nor recorded in the office of the recorder of Putnam county. Neither L. E. Blackburn, to whom said premises were

sold at forfeited land sale, I. E. Gardner, to whom said premises were conveyed by the auditor of Putnam county, nor the defendant in error, A. S. Nisley, to whom said premises were sold by I. E. Gardner and wife, nor any one of them, paid the taxes or any part ther of levied and assessed against said premises for the years 1897, 1898, 1899, 1900, or for either of said years. On the third Tuesday of January, 1899, said lands being again delinquent for nonpayment of taxes and penalty for the year 1897, and the taxes for the year 1898, and having prior to that date been so returned as delinquent and advertised for sale, were on said third Tuesday of January, 1899, offered for sale at the courthouse in the county of Putnam, by the treasurer of said county, and not being sold for want of bidders were then and there a second time forfeited to the state of Ohio. Thereafter, to wit, on April 9, 1900, said lands were again sold at forfeited land sale by the auditor of Putnam county, and were purchased by Birchard A. Hayes for the sum of $234.43, the taxes and penalty then due thereon. On December 28, 1900, the auditor of said Putnam county executed and delivered to said Birchard A. Hayes a deed for the premises so purchased, which deed was, on the 24th day of July, 1901, duly filed for record with the recorder of deeds of said Putnam county and by him duly recorded. Birchard A. Hayes, neither at the time he purchased said premises nor at the time he received the deed therefor, had any notice of the existence of the deed executed and delivered by the auditor of Putnam county to I. E. Gardner. On July 17, 1901, by deed of quitclaim, Birchard A. Hayes and wife sold, assigned, and quitclaimed to the plaintiff in error Frank G. Kahle, the then owner and holder of the legal title to said premises as appeared of record, all their right, title, interest, and estate in and to said premises, together with all rights which they had acquired by virtue of the amount paid for said lands at forfeited tax sale. Thereafter, on August 8, 1900, Frank G. Kahle, by deed of quitclaim, conveyed the east half of said premises to the plaintiff in error, Jacob Warnimont. By virtue of the aforesaid conveyances to them, Frank G. Kahle and Jacob Warnimont claimed title to, and at the time of the commencement of this action were in actual possession of, the whole of the premises so conveyed. The defendant in error, A. S. Nisley, claiming to be the owner of said premises by virtue of the tax title acquired by him from I. E. Gardner, on December 11, 1903, filed his petition in the court of common pleas of Putman county against the plaintiffs in error to recover possession of said lands. The prayer of the petition was in the alternative that he might recover the possession of said lands, or, if the court should find he was not entitled to possession of the same, that then he be decreed to have a lien on said lands for the amount

paid therefor by L. E. Blackburn at the forfeited land sale of April 13, 1896, with interest and 50 per cent. penalty, together with the amount paid for certificate of purchase and for tax deed. On the trial of the cause in the court of common pleas the court found and adjudged that the tax sale of April 13, 1896, was void, and that said A. S. Nisley was not therefore entitled to recover possession of said premises. But the court rendered a judgment in his favor for the amount that had been paid for said lands at the forfeited land sale April 13, 1896, with interest thereon from the date of said sale, and decreed the same to be the first and best lien on said premises. This judgment was affirmed by the circuit court, and plaintiffs in error now ask a reversal of both of said judgments in so far as they allow and decree to A. S. Nisley a lien on said lands for the amount paid therefor, by the assignor of his grantee, at the forfeited land sale April 13, 1896.

Bailey & Bailey and B. A. Hayes, for plaintiffs in error. Chauncey L. Newcomer, for defendant in error.

CREW, J. (after stating the facts). In the briefs of counsel in this case much consideration is given the question whether the claim and lien asserted by the defendant in error, A. S. Nisley, was, at the time he commenced his action in the court of common pleas, barred by the statute of limitations. In the view we have taken of this case that question becomes wholly unimportant and need not therefore be considered or discussed in this opinion. The decision of this case is controlled, and the propriety of the judgments of the courts below determined, by the effect to be given the auditor's tax deed of December 28, 1900, by which the lands involved in the present controversy were conveyed by the auditor of Putnam county to Birchard A. Hayes, who had theretofore, on April 9, 1900, purchased the same at forfeited land sale. If the effect of that deed was to cut off and extinguish all previous liens, and to invest the purchaser, from the time of its delivery, with the legal title to said lands discharged from all previous liens and incumbrances, then the plaintiff below, A. S. Nisley, was without right to recover in this action, and his petition should have been dismissed by the trial court. If the forfeited land sale of April 9, 1900, was a valid sale and no question is made in this case but that it was-it would seem clear under the decision of this court in Jones v. Devore, 8 Ohio St. 430, that the deed subsequently executed to Birchard A. Hayes in pursuance of such sale, and the requirements of the statute, would operate, and have the effect, to divest all prior titles to, and to extinguish all previous liens upon, the lands so conveyed. In the above case Scott, J., says: "All the proceedings under the statute for the sale

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