author: Crew, J.

text:
    The State of Ohio ex rel. Gallinger et al. v. Smith, County Auditor.

      Duplicate of unpaid personal property tax — Section 2855, Revised Statutes — What taxes auditor is required to enter as unpaid —Peremptory writ will not be awarded — To compel auditor to bring up and enter — Delinquent taxes omitted by predecessors —Duties of county treasurer and auditor.

    In malting" up annually, the delinquent tax duplicate required by section 2855, Revised Statutes, the county auditor is required to enter on such duplicate only the taxes on personal property remaining unpaid, as shown by the treasurer’s books and the delinquent record as returned by him to the auditor at the time of his next preceding semi-annual settlement in August. And where in making up such delinquent duplicates, former auditors, in previous years, have omitted to carry forward and enter thereon from, year to year, the unpaid personal taxes upon a former delinquent duplicate or duplicates, so that such former delinquent taxes are not shown by the treasurer’s books or the delinquent record returned by him to the auditor at the time of such semi-annual August settlement, a peremptory writ of mandamus will not be awarded to compel the present auditor to bring up and enter upon the current delinquent duplicate, such delinquent personal taxes so omitted by his predecessors, the right to require him so to do not being clear, and the duty not being one specifically enjoined upon him by law.
    (No 8821
    Decided November 1, 1904.)
    Error to tlie Circuit Court of Crawford county.
    This was a proceeding in mandamus commenced originally in the circuit court of Crawford county, on December 26, 1903, to compel the auditor of said county to place upon the delinquent tax duplicate for the year 1903, the unpaid delinquent taxes standing charged upon, the delinquent tax duplicate of said Crawford county, from the year 1890 to 1902, and to deliver such delinquent duplicate, when so^ made up, to the county treasurer of said Crawford county for collection. Relator’s petition, omitting caption and verification, is as follows:
    “The plaintiff says that Charles G-allinger is the duly elected, qualified, and acting prosecuting attorney of Crawford county, Ohio, and that this action is brought in the name of the state of Ohio on the relation of said prosecuting attorney and the board of county commissioners of Crawford county, Ohio, on behalf of the state of Ohio and said county of Crawford, to compel the performance of a legal duty, as. hereinafter set forth, on the part of the defendant, J. I. Smith, who is the duly elected, qualified, and acting county auditor of Crawford county, Ohio.
    “Plaintiff says that large amounts of unpaid personal taxes stand charged on the original and delinquent tax duplicates of Crawford county, Ohio, for the years 1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900 and 1901, and the same are-legal taxes due said county and state; that said taxes, are not barred by any statute of limitations, are not. omitted taxes and have never been left off or dropped from said original and delinquent tax duplicates of said years, or ordered left off or dropped from subsequent duplicates, or otherwise cancelled or discharged; that the persons from whom said unpaid taxes are due and owing are solvent and have-sufficient property to satisfy the same; that said taxes for said years, by reason of non-payment, have-become and are delinquent; that the same have not been entered or placed on the delinquent tax duplicate of said county for the year 1903; that said taxes amount to more than $50,000, and that-it is the duty of the defendant, as such auditor, to place and enter-said unpaid and delinquent taxes for said years on. the delinquent tax duplicate of said county for the year 1903, in order that the same can be collected by the treasurer of said county, but said defendant has refused to perform said duty and still refuses to do so.
    “Plaintiff further says that on December 19, 1903, the board of county commissioners of Crawford county, Ohio, at its office, in due session convened, made certain findings and orders, and passed certain resolutions on a hearing before said board on the matter to have entered and placed on the delinquent tax duplicate of said county for the year 1903, the unpaid and delinquent personal taxes standing charged on the original and delinquent tax duplicates of said county, from the year 1890 to 1901 inclusive, and on said hearing, after due inspection of the books and various tax duplicates and lists, examination and evidence, said board of county commissioners found that unpaid personal taxes of former years, to-wit, from 1890 to 1901 inclusive, standing charged against persons on the tax duplicates of said county for the years in which the personal property was listed by said persons, and the taxes computed thereon placed on said duplicates by the auditor, were not entered on the delinquent tax duplicate made out by the county auditor about September 15, 1903, which latter duplicate was on the said nineteenth day of December, 1903, in the hands of the county treasurer for collection of the taxes standing charged thereon; that said unpaid and delinquent personal taxes for said years, not entered or placed on said delinquent duplicate of 1903, at the date of said hearing, amounted to more than $50,000, due the county and state from the persons against whom the same stand charged on the original and delinquent tax duplicates for each of the years from 1890 to 1901 inclusive; that said persons have sufficient means and property. with which to pay said taxes .and which property can be subjected to the payment thereof by sale on executions issued on judgments ■obtained in civil actions brought by the county treasurer against such delinquents.
    “On said hearing said board of county commissioners fúrther found that it has been the uniform and unbroken practice of all the county auditors of ;said county, in'making out the delinquent tax list or ■duplicate each year for the treasurer to collect, to place and enter on such delinquent list and duplicate only the unpaid taxes on personal property appearing due and unpaid from the original tax duplicate of the preceding year, and that none of said auditors entered or placed on such delinquent duplicate any unpaid delinquent taxes standing charged against persons on any delinquent tax duplicate theretofore; that none of such unpaid and delinquent taxes were left off or dropped, or ever ordered to be -dropped or left off, by said auditors from the delinquent tax duplicates of any year on account of any partial payment of taxes or supposed settlement thereof, or otherwise; that by so making out said delinquent tax duplicates under said practice there became, were and are in said county as many delinquent tax duplicates as there are years, and are unsettled and unpaid, and that none of said delinquent tax duplicates nor that of the present year contained ■or contains the unpaid delinquent taxes standing charged on any delinquent tax duplicate of the preceding year, but all the delinquent duplicates contained and contain only the unpaid taxes standing ■charged against, persons on the original tax duplicate of the preceding year; and said board further, found that by reason of the law, the county treasurer had no power or authority to collect by civil action the unpaid and delinquent taxes due the county and state, unless the unpaid and delinquent taxes prior to 1902 standing charged against persons on the original and former delinquent duplicates, were entered and placed on the delinquent tax duplicate of 1903, provided for by section 2855 of the Revised Statutes of Ohio and in the hands of the treasurer for collection, and that the unpaid and delinquent taxes could be collected by the treasurer by civil action if the same were entered and placed by defendant on the delinquent tax duplicate of 1903, in the hands of said treasurer for collection at the time of said hearing.
    “For the purpose of enforcing the collection of said unpaid and delinquent taxes, not entered and placed on the delinquent duplicate of 1903 (made out by said auditor about September 15, 1903), and to enable the county treasurer to collect said taxes, said board of county commissioners duly passed a resolution at said hearing ordering and directing the defendant county auditor to forthwith enter and place on said delinquent tax duplicate of 1903, so as aforesaid made out by him- and then in the hands of said treasurer for collection, all the unpaid and delinquent taxes of former years standing charged against persons on the various tax duplicates of said county from the year 1890 to 1902, in accordance with law and the findings of said commissioners as aforesaid, and that when said auditor had so entered and placed said unpaid and delinquent taxes on the delinquent tax duplicate of 1903, he should place the same in the hands of said treasurer for collection of the taxes standing charged thereon; and further ordered that said findings, orders and resolutions be entered on the commissioners’ journal.
    “Plaintiff avers that said findings, orders and resolutions were thereupon duly entered on said journal by the defendant auditor
    “Plaintiff avers the fact to be that it has been the uniform and unbroken practice of all the county auditors of said county in making out and preparing the delinquent tax duplicate in said county for any year, to place and enter on such delinquent duplicate for such year only the unpaid taxes on personal property appearing due and unpaid from the original duplicate of the preceding year, in the hands of the treasurer for collection, and not to enter or place thereon any unpaid and delinquent personal taxes appearing due and unpaid from any delinquent tax duplicate of a preceding year; that no unpaid and delinquent taxes on any delinquent tax duplicate of said county was left off or dropped by any auditor, or ordered dropped or left off, from the delinquent list or duplicate for the following year on account of any partial payment of such taxes or supposed settlement thereof, or otherwise; that none of the delinquent tax duplicates of said county contains the unpaid delinquent taxes standing charged on any delinquent tax duplicates of the preceding year.
    ‘ ‘ Plaintiff avers that in making out the delinquent tax duplicate of said county in 1890, between the semi-annual settlement in August and September 15, 1890, the then county auditor entered thereon only the unpaid taxes on personal property and penalty that remained due and unpaid on the current tax duplicate of 1889 which had been in the treasurer’s hands for collection of tlie taxes thereon, and no delinquent and unpaid personal'taxes of the year 1889 on the delinquent duplicate of that year, remaining unpaid, were carried forward and entered on the delinquent tax duplicate made out in 1890 as aforesaid ; that in making out the delinquent tax duplicate of said county in 1891, between the semi-annual settlement in August and September 15, 1891, the then county auditor entered thereon only the. unpaid taxes and penalty that remained due and unpaid on the current tax duplicate of the preceding year, to-wit, 1890, which had been in the treasurer’s hands for collection of the taxes thereon, and no delinquent and unpaid personal taxes of the year 1890 on the delinquent duplicate of that year, remaining unpaid, were carried forward and placed on the delinquent tax duplicate made out in 1891 as aforesaid; and that the same method and practice in making out and preparing the delinquent tax duplicates of said county was pursued by all the county auditors of said county for all the succeeding years, to the present time; and the delinquent duplicates for all of said years are still open for the voluntary payment of taxes by any person who.may wish to pay the same standing charged against him.
    “Plaintiff says that the delinquent tax duplicate of said county, made out by the defendant auditor between the semi-annual settlement in August and September 15, 1903, and now in the hands of the treasurer for collection of the taxes entered and placed thereon, contains only the unpaid and delinquent taxes on the original tax duplicate of the year 1902, and does not contain the unpaid and delinquent taxes due said county and state, prior to the year 1902 of taxes; that by reason of the law, the county treasurer of said county has no right or authority to collect the unpaid delinquent taxes of former years not placed on the delinquent duplicate of the year 1903, by civil action, and that by reason of the defendant auditor refusing to enter said unpaid and delinquent taxes of former years, amounting to over $50,000 due said county and state on said delinquent tax duplicate for 1903, said treasurer cannot proceed to collect said taxes from the persons from whom the same are due and owing by any of the means provided by law for the collection of taxes, and as long as the same are not placed on the delinquent duplicate of 1903, the same cannot be collected in 1903 by any means provided by law for the collection of the same; and the plaintiff avers that the facts contained in said findings, orders and resolutions are true.
    “Plaintiff says there is no adequate and plain remedy in the ordinary course of the law whereby the defendant auditor can he made to enter and place said unpaid delinquent taxes standing charged on the delinquent tax duplicates of years prior to that for the year 1903 and on the original duplicates of years prior to the year 1902, on the delinquent tax duplicate of said county for the year 1903, and there is no plain and adequate remedy in the ordinary course of the law whereby said unpaid and delinquent taxes of years prior to that of 1902, amounting to said sum of more than $50,000 due said county and state as aforesaid, can he collected from the persons who owe the same, unless the peremptory mandamus herein prayed for is granted; and that unless the peremptory mandamus herein prayed for is granted at once and said taxes entered on said delinquent • duplicate so that- the proper means can he exercised to enforce the speedy collection of said taxes, there is great danger that some of the persons who owe said unpaid and delinquent taxes will become insolvent and otherwise dispose of their property so as to defeat the county and state in the collection of said delinquent and unpaid taxes; and plaintiff avers that the right to require the performance on the part of said defendant auditor of said act and duty as per the law, the findings, orders and resolutions of said board of county commissioners and the facts herein-before set forth, is clear, and that no valid excuse can be given by said defendant auditor for not performing the same.
    “Wherefore plaintiff prays that a peremptory writ of mandamus be allowed herein, in the first instance, requiring and compelling said defendant auditor to place and enter the unpaid and delinquent taxes standing charged on the delinquent tax duplicates of Crawford county, Ohio, from the year 1890 to 1902, inclusive, upon the delinquent tax duplicaté of said county for the year 1903, and that when so entered and placed thereon, and such tax duplicate made out as hereinbefore set forth, said auditor shall deliver the same into the hands of the county treasurer to collect the taxes thereon as provided by law, and for such other relief as* may be necessary. ’ ’
    To this petition the defendant on January 2, 1904, filed the following answer:
    “The defendant, J. I. Smith, for answer to the petition for a peremptory writ of mandamus herein against him, says he is the duly elected, qualified and acting county auditor of Crawford county, Ohio; that he here waives notice and enters his appearance as such defendant herein and waives the issuance of an alternative writ.
    “He admits the allegations of plaintiff’s petition to be true, and admitting the same to be true he says lie ought not to be required to enter the unpaid and delinquent taxes of former years on the delinquent tax duplicate of said county for the year 1903 for the reason that said treasurer can proceed to collect said taxes by civil action without the same being entered and placed on the delinquent duplicate of 1903.
    “Wherefore defendant prays he may go hence.”
    On January 26, 1904, the relators, by leave of court, filed the following amendment to their petition :
    “The plaintiffs, for amendment to the petition herein, say:
    ‘ ‘ That at the time of the hearing of said matter to have entered and placed on the delinquent tax duplicate of said county for the year 1903, the unpaid and delinquent personal taxes standing charged on the delinquent tax duplicates of said county from the year 1890 to 1902, before said board of county commissioners on said nineteenth day of December, 1903, as averred in plaintiff’s petition, said board of county commissioners further found, and plaintiffs so aver the fact to be, that among the unpaid and delinquent personal taxes due said county and state, were those standing charged on the tax duplicates of 1892,1893,1894,1895 and 1896, amounting to $1,048, against one J. C. F. Hull, of Bucyrus, in said county and state, who had made personal verified returns of his taxable personal property in said county for each of said years, and after said Hull had made such returns thereof, the county auditor of said county computed the taxes thereon and placed the same on the original tax duplicates of said county for each of the years as per the returns made by said Hull as aforesaid, for each of said years, and that said taxes so charged on said tax duplicates for each of said years have never been paid and the same are still dne and owing from the said Hull.
    “Said commissioners at said time further found, and plaintiffs so aver the fact to be, that it had been the uniform and unbroken practice of all the county auditors of said county, in making out the delinquent tax lists and delinquent tax duplicates of unpaid personal taxes in said county for any year, to place and enter on such delinquent list and duplicates only the unpaid personal taxes appearing due and unpaid from the original tax duplicate of the preceding year, and that none of said auditors entered and placed on such delinquent list and duplicate any unpaid delinquent personal taxes standing charged against persons on any delinquent tax duplicate theretofore; that by reason of such uniform and unbroken practice on the part of said county auditors in so making up the delinquent tax lists and duplicates of said county, the taxes aforesaid of the said J. C. F. Hull were left off of, and not entered on, the delinquent tax lists and delinquent tax duplicates of said county for the years 1896,1897,1898,1899,1900, 1901 and 1902, and that neither said Hull’s unpaid delinquent personal taxes aforesaid nor those of any other person were left off or dropped from the delinquent tax lists and duplicates aforesaid for any of said years on account of any partial payment or supposed settlement of such taxes, or otherwise, but the same were left off of, and not entered on, such delinquent tax lists and duplicates solely by reason of said method and practice aforesaid; and said commissioners then further found, and plaintiffs so aver the fact to be, that by reason of the law as laid down in the case of Alexander, county treasurer of said county, against said Hull, decided by the Supreme Court of Ohio, the county treasurer has no power or right to collect by civil action any unpaid delinquent personal taxes of said years due from said Hull or any other person, to said county and state, unless the unpaid delinquent personal taxes of said Hull, or those due from other persons, are entered and charged on the delinquent tax duplicates of said county for the year in which the civil action to enforce collection and payment of said taxes is brought; that after the said taxes of said Hull for each of said years became delinquent, the same were not carried forward on any delinquent tax list and duplicate of said county for the succeeding years, and the same were not and are not entered and placed on the delinquent tax list and delinquent duplicate of said county for the year 1903 (made out by said auditor as averred in the petition), although said taxes were never paid or otherwise discharged by said Hull, who ever since the year 1892 has been, and still is, solvent and has moré than sufficient means and property with which to pay his said unpaid delinquent personal taxes, and which property can be subjected to the payment of said taxes by sale on execution issued on judgment obtained in civil action by the county treasurer against said Hull.
    “That for the purpose of enforcing the collection of said unpaid and delinquent personal taxes of said Hull, not entered and placed on the delinquent tax lists and duplicate- of said county for the year 1903, as averred in the petition, and to enable the county treasurer of said county to collect the unpaid and delinquent personal taxes of the said Hull, as aforesaid, and other delinquents, said board of county commissioners duly passed the resolution mentioned in plaintiff’s petition, ordering and directing the defendant county auditor to forthwith enter and place on a delinquent tax duplicate of said county for the year 1903 all the unpaid and delinquent personal taxes due as aforesaid, including those of the said Hull, and that when so entered and placed on such duplicate, the same he then delivered and placed in the hands of the county treasurer for collection of the taxes standing charged thereon from the persons owing the same, and to he collected hy said treasurer hy any of the means provided hy law for the collection of such taxes.
    ‘ ‘ The said findings, orders and resolution concerning said unpaid and delinquent personal taxes of said Hull were and are embodied in the findings, orders and resolution mentioned in the petition herein, and were and are entered oh the commissioners’ journal of said county hy said auditor.
    “Plaintiffs say that the defendant auditor has refused and still refuses to enter and place said unpaid and delinquent taxes of said Hull and other persons owing delinquent taxes of years prior to those of 1903, on a delinquent tax duplicate of said county for the year 1903, and place the same into the treasurer’s hands for collection; and said defendant auditor has refused and still refuses to make out and prepare a delinquent tax duplicate for said county for the year 1903, containing the names and amounts of such delinquent taxes due from the delinquent taxpayers who owe delinquent personal taxes prior to said year, and refuses to enter the name of said Hull and the amount of his said unpaid and delinquent taxes on a delinquent tax duplicate of said county for the year 1903, hy reason whereof said treasurer cannot proceed to collect said taxes for and in behalf of said county, and the state of Ohio; all of which things aforesaid said auditor refuses to do to the great and irreparable injury of the public welfare. Said taxes are part of the public revenue of said county and of the state of Ohio.
    “Plaintiffs say there is no adequate and plain remedy in the ordinary course of the law whereby said defendant auditor can be made to enter and place said unpaid and delinquent personal taxes standing charged on the delinquent tax duplicates and duplicates mentioned in the petition, against the persons owing the same, on a delinquent tax duplicate of said county for the year 1903, and the names of the persons owing the same and the amounts of such delinquent taxes due from each on such delinquent tax duplicate, and be made to do the things herein complained of which he refuses to do, and there is no plain and adequate remedy in the ordinary course of the law whereby said unpaid and delinquent taxes of said Hull and other delinquents can be collected by said treasurer and as part of the public revenue; that the right to require the performance on the part of said defendant auditor of said acts and duties as per the law, the findings, orders and resolution of said board of county commissioners and the facts herein set forth, is clear, and that no valid excuse can be given by said defendant auditor for not doing and performing the same.
    “Wherefore plaintiffs pray that a peremptory writ of mandamus be allowed herein, in the first instance, requiring and compelling said defendant auditor to place and enter the unpaid and delinquent taxes on personal property of the said J. C. F. Hull, and of the other persons whose taxes on personal property is due and unpaid, and delinquent, for the years aforesaid, and standing charged on the tax duplicates of said county for said years, as due and' unpaid, upon a delinquent tax duplicate of said county for the year 1903; that said defendant, as such auditor, be required and ordered to prepare and make out a proper delinquent tax duplicate for said county for the year 1903, as provided by law, and place and enter thereon the names of the persons whose taxes are due, unpaid and delinquent for the years aforesaid, together with the respective amount of such taxes due and owing from each to said county and state so that said public revenue can be collected as aforesaid; that he be required to do the acts and things herein set forth, and that he deliver to the county treasurer the delinquent duplicate of said county for said year 1903, with the names of such delinquents and amounts of taxes due from each, thereon, for collection of the same, and for such other and further relief as may afford plaintiffs who sue on behalf of said county and state the necessary relief. ’ ’
    To this amendment to the petition the defendant on said twenty-sixth day of January, 1904, answered as follows:
    “The defendant, for answer to the amendment to the petition filed by the plaintiff, relators herein, says:
    “He admits the allegations of said amendment to the petition to be true, but he says that he ought not to be required to enter and place said unpaid and delinquent taxes on a delinquent tax duplicate of said county for the year 1903, for the reason stated in his answer to the petition of plaintiffs.”
    Thereupon, on the same day, to-wit, January 26, 1904, the cause was heard and submitted to the circuit court of said Crawford county upon the pleadings aforesaid. The circuit court found and adjudged that the relators were not entitled to a writ of mandamus as prayed for, and thereupon the relators’ petition and the amendment thereto, and the case, were by said court dismissed at the costs of said relators. The purpose of the present proceeding in error, is to obtain a reversal of this finding and judgment of the circuit court.

      Mr. Charles Gallinger, prosecuting attorney, for plaintiffs in error.
    In legal lore, as far back as we are permitted to go, it has always been the universal rule that as between the government and its subjects, the subject could take no advantage of the government on account of the laches or wrongs of its officers. This rule had its origin in the maxim that “the king can. do no wrong,” and it applies with equal force to’ our state government, which, in the eye of the law,, can neither do wrong nor suffer from laches; and it-would certainly be the ■ greatest weakness and ab-. surdity, in any system of government, if the government, which can only transact its business through its chosen agents, would have to suffer the consequences resulting from the laches of its agents or officers.
    Taxation is an incident of sovereignty, and is coextensive with the subjects to which the sovereignty extends. Cooley on Constitutional Limitations, 56. It is also a recognized constitutional and lawful means of raising revenues for the public needs. Wasteney v. Schott, 58 Ohio St., 415. Its incidency to our state sovereignty is expressed in article 12, ■section 2 of the constitution, by the use of the words “Laws shall he passed, taxing,” property. Baker v. Cincinnati, 11 Ohio St., 534; Bank v. Billings, 4 Pet., 514; Railroad v. Maryland, 10 How., 376; Railway v. Dennis, 116 U. S., 668; Gibbons v. United States, 8 Wall., 269; Story on Agency (7 ed.), sec. 319; Clodfelter v. State, 86 N. C., 51; Lewis v. State, 96 N. Y., 71; Trustees Green Township v. Campbell, 16 Ohio St., 14; Seeley v. Thomas, 31 Ohio St., 308; Lee, Treas. v. Sturges, 46 Ohio St., 176; United States v. Kirkpatrick, 9 Wheat., 735; State ex rel. Lott v. Brewer, 64 Ala., 287; Easton Bank v. Commonwealth, 10 Barr., 443; Canal Co. v. Commonwealth, 50 Pa. St., 399; Dennis v. Railway, 34 La. Ann., 954; Finley v. Philadelphia, 32 Pa. St., 381.
    This universal rule, concerning which Judge Dan-forth said was “so uniformly asserted by writers of •approved authority and the courts.that fresh discussion would be superfluous,” was, in our opinion, clearly and unmistakably departed from by the decision of this court in the late case of Hull v. Alexander, Treas., 69 Ohio St., 75.
    It is left in doubt whether Hull’s unpaid delinquent taxes or those of any other delinquent, where it has not been carried forward, can now be carried forward and entered on the present duplicate; for,' it is hinted in the last statement of Judge Burket’s ■opinion that whether it can be done “at this late day” by the auditor is not decided. In view of the universal principle hereinbefore stated, that time works no bar against the state’s rights, why this lonely word “late” should make its appearance for the first time in the face of this well-settled rule, is not apparent to us; of course, the opinion of a case is not accredited as being the pure law.of a case, while the syllabus is.

      There is a clear and distinct recognition by this court that Mr. Hull has never paid his taxes due the-state, and it is conceded in this case that neither his-nor the other delinquent taxes mentioned in the petition have been paid. And' it is to be noted from the facts that these delinquent people have not “so arranged their taxes either by payment or otherwise as to have the charge removed from the duplicate.”'
    It is Judge Burket’s opinion in the Hull case that people can arrange their taxes by payment or otherwise as to have the charge removed from the duplicate. "We know of no such law; but if it is lawful the arrangement would have to be made with the-state’s collecting officer, the county treasurer, while-the duplicate is in his hands for collection, and with the state’s taxing officer, the county auditor, when the duplicate has been returned to him between the-semi-annual settlement in August and September 15th. It would necessarily follow from that opinion that any arrangement made by a taxpayer with the-state’s taxing or collecting officer uas to have the charge removed from the duplicatewould be binding on the state, notwithstanding the opinion of all the text-writers and authorities to the contrary.
    We think the auditor’s refusal is not in accord with the opinion of this court in the Hull case, and that he has no valid excuse for not performing the duty prayed for in this case.
    It is admitted that all the auditors have failed and omitted to do the duty as the state’s taxing officer in carrying forward and rewriting the names of the-delinquents and the amount of their unpaid taxes, from one delinquent duplicate to the following yearly delinquent duplicate. In any event, the omission of former county auditors to perform such duty “cannot control the duty imposed by law upon their successors, ’ ’ as was decided by Judge Spear in 46 Ohio State; and this rests upon the grounds that laches cannot be imputed to the state, that its rights cannot be prejudiced by the neglect of its officers, and that as against the state time does not bar its rights, as was held in 16, 31 and 58 Ohio State. And this suit being by the state to compel its taxing officer to perform an imposed duty, it is therefore clear that the state is entitled to the peremptory mandamus in this case.

      Mr. A. 8. Leuthold, for defendant in error.
    The circuit court still cling to their decision they made in Hull v. Alexander, Treasurer, 48 O. L. B., 935, that the taxes once entered are not discharged until paid, and that the taxes are collectible on the old duplicate without rewriting the entire list, and that the auditor cannot be compelled to rewrite and enter on a new duplicate what already was once entered and put on a duplicate and now is on the duplicate, and he cannot be compelled to do what a former county officer should have done.
    First: We claim on behalf of the respondent that the relatoras petition for a writ of mandamus is not such, due regard being had to the rules of pleading, as will entitle him to such writ. It is bad, not only for duplicity, but for multifariousness.
    What is mandamus 1 ‘ ‘ Mandamus is a writ issued in the name of the state to an inferior tribunal, a corporation, board or person commanding the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station. ’ ’ Section 6741, Revised Statutes.

      We desire to state here that the relator’s petition does not state any fact that constitutes a failure of the auditor to perform any act which the law specifically enjoins on him as a duty resulting from his office. The pleader, in his own language, characterizes in a general way innumerable instances, mostly on the part of the respondent’s, predecessors, without giving time, place-or person, or specific facts by which the court can determine whether he is at fault or not.
    Mandamus requires him to perform an act which the law specially enjoins as a duty resulting from his office.
    It must be specific and directed to a single act, which he refuses. If there are unlimited numbers of acts which he refuses, they cannot be grouped in one action in mandamus, and he directed generally to go and do them all, and be the judge of which ones fall within the command.
    We desire to call the attention of the court to some of the elementary rules of pleading as summarized in Gould’s excellent work on the subject, and to asseverate that relator’s petition does not comply with them in any particular; Chapter 1, sec. 4, sec. 20 XXX; Chap. 3, secs. 1, 28, 51 and 60; Chap. 4, sec. 86; Ohio Code, sec. 5062.
    Relator’s petition alleges perhaps more than fifty different acts, which he claims should be performed by the auditor, no two of them pointed out to be alike, yet he asks one order to cover them all.
    Second: What do the Revised Statutes of Ohio provide? Nowhere in the Revised Statutes of Ohio is any law to be found directing the present auditor to perform this duty; nowhere in the statutes can it be found that this auditor must do what a former county auditor should have done.
    The county auditor must perform the duties prescribed for him to do in the statutes, and certainly; if there is no section of law requiring him to do this, and no section of law giving him any compensation to do this work that he is now asked to do by the plaintiffs in error, he' cannot be compelled to do what hé is asked to do in the plaintiff’s petition herein.
    The remedy that the plaintiffs in error are here seeking is with the legislature, and that body should be asked for relief and not the county auditor, as the county auditor performs the duties that are prescribed by the legislature, and when that body is asked for relief it will also provide for adequate compensation for what he must perform and is asked to perform as any one who performs labor for an individual.
    While section 2855, Revised Statutes, says that he must “mpke a tax list and duplicate thereof of all the taxes and personal property remaining unpaid as shown by the treasurer’s books,” it does not say that he must go back for a period of thirteen years and perform a duty that had been neglected by a former official, or undo what has been the uniform practice in the state of Ohio, which mode of keeping the auditor’s duplicates was and has been prescribed by the auditor of the state of Ohio, as found in section 1041, Revised Statutes.
    Section 1041, Revised Statutes, certainly prescribes the manner of placing taxes on duplicates and prescribes the forms of tax lists and duplicates; and that authority is granted to the auditor of state and he is the officer that prescribes the manner and form of keeping tax lists and duplicates for the county auditor, and when the legislature delegated that authority to the state auditor, it follows that the county auditor must conform to the wishes and methods of keeping his duplicates as prescribed by the auditor of the state of Ohio. The uniform practice cannot be changed by the courts of this state, and hence it follows that if the manner of keeping the tax duplicates is not satisfactory and a change is needed, the legislature must be asked to make that change by proper instructions to the auditor of state as to how and in what manner the duplicates shall be kept in the state.
    To grant a peremptory writ of mandamus against the auditor compelling him to rewrite all the taxes for thirteen years in plain view of what the Supreme Court of this state has said in Wasteney v. Schott, 58 Ohio St., 410, would certainly be a departure of the well settled law.

      Messrs. Harris & Sears, for defendant in error.
    “Mandamus is a writ issued'in the name of the state to an inferior tribunal, a corporation, board or person, commanding the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station.” Section 6741, Revised Statutes.
    . We assert that relator’s petition does not state any fact that constitutes a failure of the auditor to perform any act which the law specifically enjoins on him as a duty resulting from his office. The pleader, in his own language, characterizes in a general way innumerable instances, on the part of the respondent’s predecessors, without giving time, place or person, or specific facts by which the court can decide that defendant is at fault.

      Mandamus requires Mm to perform an act which the law specially enjoins as a duty resulting from his office; not that he shall perform duties that were enjoined on his predecessors.
    In the petition, not a single instance- of neglected duty is specified. Each act refused should be described with the same particularity prescribed for other pleadings, because the code pleadings are applied in mandamus. Section 6741, Revised Statutes.
    The relator is hound to set forth facts sufficient to entitle him to the relief prayed.
    The principle which seems to lie at the foundation of this writ and its use, is, that wherever a legal right exists, the party is entitled to a legal remedy, and when all others fail, the aid of this writ may he invoked. People v. Mayor of N. Y., 10 Wend., 396; 3 Burr, 267; People v. Albany (Supvrs.), 12 Johns., 415.
    When the legal right is doubtful, a writ of mandamus can not rightfully issue. Kendall v. United States, 12 Pet., 613; Oneida Common Pleas Judges v. People, 18 Wend., 89; 5 Burney, 103; Nelson Ex parte, 1 Cow., 423; People v. Chenango Co. (Supvrs.), 1 Kernan, 563.
    Relator’s petition alleges perhaps more than fifty different acts of omission on the part of the former auditors, which he claims should he performed by the present auditor, no two of them pointed out to he alike, yet he asks one order to cover them all.
    He knew, and this court knows, that statement to be untrue. The record of the Hull case, in which the relator was counsel, shows that Hull’s taxes were settled, a receipt reciting a partial abatement given, and the balance paid and receipted in full by the treasurer, and no part of the taxes were subsequently carried forward on delinquent tax duplicates.

      We may properly remark at this point by way of parenthesis, that if it was a duty specifically enjoined on any officer to bring the remainder of said taxes forward on the delinquent duplicates, it was the former auditors against whom a mandamus should have issued. It is difficult to perceive any provision of the law of mandamus, which will compel the present auditor to perform a duty that was enjoined on his predecessor, and not on himself. Selby, Aud. v. State, 63 Ohio St., 541.
    The duty of a county auditor, with respect to making out a tax list and duplicate, is prescribed by statute, and his duty and authority, with reference to entering delinquent taxes on the duplicate, are also prescribed by statute; and as we contend it is not within the province of a court, by judicial legislation, to supply any authority that may not have been conferred upon the auditor by law.
    The section 2855, Revised Statutes, contains the authority, and the only authority, conferred by the legislature upon county auditors, with respect to entering delinquent taxes upon the tax duplicate, and it manifestly has reference to taxes appearing delinquent upon the last preceding tax duplicate and the treasurer’s books. If the former auditors failed to comply with the statute, there is an adequate remedy by due course of law to sue them on their official bonds.
    There certainly can be no more potent argument suggested, why an auditor should run back for a long period of time to hunt up the old tax duplicate, upon which taxes appear to be charged and unpaid, and enter the same upon the current duplicate, than could be urged in favor of the contention, that such old duplicate might itself afford a basis for an action by a county treasurer against the taxpayer, under section 2859, Revised Statutes, and the latter proposition was directly decided by this court in the case of Hull v. Alexander, 69 Ohio St., 75.
   Crew, J.

The respondent in this ease, J. I. Smith, as county auditor of Crawford county, Ohio, in the answers filed by him to relators’ petition and the amendment thereto, admits the truth of the allegations of said petition and amendment, and pleads by way of justification, and as matter of excuse, for the nonperformance by him of the acts, performance of which it is sought to compel by mandamus, that: “he ought not to be required to enter the unpaid and delinquent taxes of former years on the delinquent tax duplicate of said (Crawford) county for the year 1903, for the reason that said treasurer can proceed to collect said taxes by civil action without the same being entered and placed on the delinquent duplicate of 1903.” This court having decided in the case of Hull v. Alexander, Treasurer, 69 Ohio St., 75, that: “The action by the county treasurer for the collection of delinquent personal taxes authorized by section 2859, Revised Statutes, must be for taxes standing charged on the duplicate of the current year, or the delinquent duplicate,” it follows that these ánswers tender no issue with the allegations of relators ’ complaint, and as defenses are wholly insufficient in law. This case therefore stands in this court as if upon a general demurrer to relators ’ complaint, and the sole question presented on this record for our consideration is, does relators’ petition, as amended, state facts sufficient in law to entitle them to a peremptory writ of mandamus, as prayed for in said petition? This we think must be answered in the negative. It must now be accepted as a thoroughly well settled rule, that a peremptory writ of mandamus will not, in any case, be granted, unless the right of the relator thereto be clear, and the act, performance of which is desired, be one of absolute obligation on the part of the person or officer sought to be coerced; and before such writ will be allowed the relator must show not only a clear legal right to have done the specific act desired, but to have it done by the particular person or officer sought to be coerced; and a plain dereliction of duty must be established against such person or officer before the writ will be awarded. In Selby, Auditor, v. The State ex rel. King, 63 Ohio St., 543, Shauck, C. J., says: ‘ ‘ Thevoffice of the writ of mandamus is clearly indicated by the definite terms of section 6741 of the Revised Statutes. The writ is there defined in accordance with the view taken by the courts at the time of the adoption of the constitution, and the vesting of jurisdiction of the action. The writ may issue to command ‘the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.’ It may not issue to compel the performance of an act not so enjoined.” Section 2855, Revised Statutes, provides as follows: “Immediately after the semi-annual settlement in August, the county auditor shall, annually, make a tax-list and duplicate thereof of all the taxes on personal property remaining unpaid, as shown by the treasurer’s books, and the delinquent record as returned by him to the auditor, which tax-list and duplicate shall contain the name, valuation, and amount of personal property taxes due and unpaid, and ten per centum penalty added to the said taxes; and he shall deliver said duplicate to the treasurer on the fifteenth day of September, annually. ’ ’ This section prescribes when, how and from what, the delinquent duplicate shall be made up by the county auditor, and it contains the only authority conferred, and the only obligation or duty imposed, by law upon county auditors with respect to the entering of delinquent personal taxes upon the tax duplicate. By the provisions of this section such delinquent duplicate is to be made up by the áuditor by entering thereon “all the taxes on personal property remaining unpaid, as shown by the treasurer’s boohs and the delinquent record as returned by him to the auditor.” It will be observed that by the provisions of this section this delinquent duplicate is to be made up by the county auditor annually, immediately after the .semi-annual settlement with the county treasurer in August of each year, and is required to contain only such unpaid delinquent taxes on personal property as shall be shown by the treasurer’s books and the delinquent record returned by him to said auditor. This statute, in terms, only requires, and we think was only intended to require, the county auditor when making up such delinquent duplicate in any year, to. place and enter thereon for the current year such taxes on personal property as remain due and unpaid as shown by the treasurer’s books and the delinquent record then (at the time of such settlement) returned by the treasurer to said auditor. This statute — section 2855 — has been in force substantially in its present form for almost thirty years, and it is conceded by counsel for relators that the uniform practical construction placed upon said statute by the officers charged with its execution, has been that the same imposes upon county auditors, in the making up of said delinquent duplicate the ob-’ ligation or duty to carry into such duplicate only the taxes upon personal property appearing as due and unpaid upon the last preceding tax duplicate as returned by the treasurer to the auditor at the time of his semi-annual August settlement immediately preceding the time of making up such delinquent duplicate. While the practical construction thus adopted cannot be admitted as absolutely controlling, it is nevertheless, we think, deserving of consideration and should, perhaps, be regarded as decisive in a case of doubt, or where the obligation imposed or the duty enjoined is not plain and specific. Union Insurance Co. v. Hoge, 21 Howard, 35; Mathews v. Shores, 24 Ill., 27; Solomon v. Commissioners of Cartersville, 41 Gra., 157; 26 Encyclopedia of Law, 635. The duties of the county auditor with respect to making up the delinquent tax duplicate are such only as are prescribed by statute, and a court is without right to require of' him the performance of any service in that behalf not specifically enjoined upon, or required of him by law. If it be granted that by section 2855, the duty is imposed upon the county auditor in making up the delinquent duplicate, to carry forward onto such duplicate all of the taxes on personal property theretofore charged in any previous year and remaining unpaid, regardless of whether such delinquencies are shown by the treasurer’s books as returned by him to the auditor at the time of his semi-annual settlement in August next preceding the time of the making up of such delinquent duplicate, then and in that event, it became and was the duty of the predecessors in office of the respondent herein, J. I. Smith, who became auditor of Crawford county, October 20, 1902, in making up the delinquent duplicate for' the years previous to the year 1902, to enter thereon all over-due and unpaid taxes on personal property charged on any and all delinquent duplicates prior to said year 1902, and while the omission of the several auditors in previous years, to so make up such delinquent duplicates, and (to enter thereon such unpaid personal taxes, would not excuse or relieve the present auditor, J. I. Smith, from the performance of any duty specifically imposed upon him in that behalf, yet before he can be compelled by mandamus to make a new or additional duplicate for the year 1903, and bring forward and enter thereon all delinquent taxes on personal property from the year 1890 to the year 1902, a service which if required at all, w*as one imposed by law upon his predecessors in office, his obligation so to do must be clear and the duty one “which the law specifically enjoins,” otherwise the relief, if any is to be had, must come from the legislature and not from the courts. In this case it is not claimed by relators in their petition that the respondent, J. I. Smith, as auditor of Crawford county, in making up the delinquent tax duplicate of said county for the year 1903, omitted therefrom any taxes on personal property that were shown to be due and unpaid by the treasurer’s books or the delinquent record as returned to said auditor at the time of the semi-annual settlement in August, 1903. The only complaint on the part of relators being that said auditor neglected, and now refuses, to carry into said delinquent duplicate for 1903, the delinquent personal taxes omitted to be carried forward by former auditors for the years, from 1890 to the year 1902. We are of the opinion, therefore, that the particular service which it is sought to compel the respondent in this case to perform, is not one which the statute “specifically enjoins upon him as a duty resulting from his office,” and the right of relators to the relief asked not being clear, a peremptory writ of mandamus was properly refused by the circuit court.

Judgment affirmed.

Speak, C. J., Davis, Price and Summers, JJ., concur.


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    The Village of Canfield v. Brobst.

      <One tried and convicted before mayor — Por violation of ordinance —Applies under section 1152, Revised Statutes, to common pleas court-r-To file petition in error — Refusal to grant leave to so file, not reviewable in circuit court, when — Court procedure.

    Where one who has been tried and convicted before the mayor of a municipal corporation for violation of an ordinance, applies under section 1752, Revised Statutes, to the court of common pleas, or a judge thereof, for leave to file a petition in error to review the proceedings and judgment of the mayor, and the court, or judge, to whom the application is made refuses to grant leave to file the petition in error, such refusal is not reviewable on error in the circuit court.
    (No. 8499
    Decided November 1, 1904.)
    Error to the Circuit Court of Mahoning county.
    The defendant in error, William Brobst, was charged by affidavit, before the mayor of the village of Canfield, in this state, with keeping a place where intoxicating liquors were sold at retail in violation of an ordinance of said village which was claimed to be authorized by section 4364-20, Revised Statutes, as that section then provided before its amendment by the Beal law.

      On the eighth day of January, 1903, he was tried and convicted, and the mayor adjudged him to pay a fine of $200 and costs, and to stand committed until the fine and costs should he paid. A hill of exceptions was taken and allowed, and Brobst applied to the court of common pleas for leave to file a petition in error asking a reversal of the proceedings and .judgment of the mayor.
    The application was heard and refused and leave to file the petition in error was not obtained. Thereupon Brobst prosecuted error in the circuit court to reverse the decision of the court of common pleas, refusing leave to file the petition in error. The village, by its counsel, moved the circuit court to dismiss the petition in error filed therein, because it had no jurisdiction to entertain and consider it, hut the motion was overruled, and the circuit court found that the court of common pleas erred in refusing leave to file the petition in error in that court, and reversed the decision refusing such leave, and remanded the case to the court of common pleas, with instructions to grant leave to file the petition in error.
    The village duly excepted, and prosecutes error here to reverse the judgment of the circuit court.

      Mr. G. A. Manchester and Mr. W. B. Wheeler, for plaintiff in error, cited and commented upon the following authorities:

      Schaeffer et al. v. Marienthal, etc., 17 Ohio St., 183; Craig v. Chambers, 17 Ohio St., 253; Dean v. King, 22 Ohio St., 118; Texas B. Assn. v. Aurora, etc., Co., 34 Ohio St., 291; Middleport, etc., Co. v. Titus, 35 Ohio St., 257; Rothwell v. Winterstein, 42 Ohio St., 249; Evans v. Iles, 7 Ohio St., 233; Hettrick v. Wilson, 12 Ohio St., 136; Carroll v. O’Connor, 25 Ohio St., 617; Armstrong v. Brewing Co., 53 Ohio St., 467; Miller v. Bellefontaine, 1 Circ. Dec., 407; 2 C. C. R., 139; 2 Cyc., 621; 2 Cent. Dig., sec. 893; Missionary Society v. Ely, 56 Ohio St., 405; Inwood v. State, 42 Ohio St., 186; Fletcher v. State, 7 Circ. Dec., 316; 18 C. C. R., 674; Markle v. Town Council, 14 Ohio, 586; Cincinnati v. Steinkamp, 54 Ohio St., 290; 21 Am. & Eng. Ency. Law (2 ed.), 965, note; 3 Ency. Pl. & Pr., 393-5 and 396; Railway v. Thurstin, 44 Ohio St., 525; Schultz v. State, 32 Ohio St., 276; Goldsmith v. State, 30 Ohio St., 208; Garner v. White, 23 Ohio St., 192; State v. McGehan, 27 Ohio St., 280; 4 Ency. Pl. & Pr., 377; Kinkead’s Practice, sec. 1043; Brown v. State, 1 Circ. Dec., 402; 2 C. C. R., 129; Johnson v. State, 2 Circ. Dec., 687; 4 C. C. R., 524; Champion v. State, 6 Circ. Dec., 82; 9 C. C. R., 315; Stanley v. State, 23 Ohio St., 581; Farris v. State, 1 Ohio St., 188; Jennings v. Mendenhall, 3 Ohio St., 490; secs. 1752, 1816, 6610, 6707, 6709, 7356, 7357, 7358, Rev. Stat.

      Mr. E. N. Brown, for defendant in error, presented no brief.
   Price, J.

The defendant in error was tried before the mayor of Canfield on a charge of violating one of the ordinances of the village, and on conviction was adjudged to pay a substantial fine and the-costs of the prosecution.' He took a bill of exceptions, and applied to the court of common pleas for leave to file a petition in error in that court to obtain a reversal of the judgment of the mayor. On consideration of the petition in error and bill of exceptions, the court of common pleas refused leave to file the petition in error.

Is such refusal reviewable on error in the circuit court ? That is the question presented to us by the record. A majority of that court has held that it is reviewable, and its published opinion is found in Circuit Court Reports, volume 24, page 555.

In the absence of a brief for defendant in error, we have examined the reasons advanced for the holding made by the majority, and in our judgment they are not sound.

The right to prosecute error to a judgment of a • court is purely statutory, and if such remedy is not provided by statute, none exists. Moreover, where the statute provides the right of review on error, it may fix such conditions to its exercise as the legislature, in its wisdom, may adopt. The municipal code provides for trials before the mayor and the procedure whereby a conviction for violation of a municipal ordinance may be reviewed in a higher court.. It is found in section 1752, Revised Statutes, as follows: “ * # * ‘ a conviction under an ordinance of any municipal corporation may be reviewed by petition in error, in the same manner and to the same extent as-was heretofore permitted on writs of error and certiorari, and the judgment of affirmance or reversal may be reviewed in the same manner; and for this purpose a bill of exceptions may be taken, or a statement of facts embodied in the record on the application of any party; but no such petition shall be filed except on leave of the court or a judge thereof, and such court or judge has power to suspend the sentence, as in criminal cases.”

We need not look far for a reason for this provision of our municipal code, restricting the right to file petitions in error, and which does not exist in the general practice statutes regulating proceedings1 in error. Municipal councils are authorized to pass ordinances for the preservation of order and the protection of the people within their jurisdiction. Ample means for a fair trial of one who is charged with violating an ordinance, are provided, and if the convicted party feels aggrieved over the result of his trial, he may apply to the court of common pleas or a judge thereof for leave to file a petition in error to review the proceedings and judgment of the mayor. If the court or judge thereof, presumed to he learned in the law, is of opinion that there is no merit in the application, leave is refused and the case does not reach the docket of that court.

Evidently the legislature intended to provide a summary method of disposing of applications which exhibit no merit, and prevent the accumulation of cases in the common pleas, some for delay merely, perhaps, or having no substantial grounds for reversal. This legislative provision is made special for the review of cases of conviction for violation of ordinances of municipal corporations, and according to well settled rules of construction, should and does prevail over the general statutes for the review of judgments of inferior courts or tribunals.

These general provisions seemingly relied upon by the lower court are sections 7356 and 6709, Revised Statutes. The former provides that, “in any criminal case, including a conviction for a violation of an ordinance of a municipal corporation, the judgment or final order of a court or officer inferior to the common pleas court may be reviewed in the common pleas court.”

No doubt such case may be reviewed in the common pleas court, but the provision does not pretend to modify section 1752, which prohibits the filing of a petition in error in that court to review a conviction for violation of an ordinance except on leave of the court or a judge thereof. The common pleas may acquire and have jurisdiction in such case, or it may refuse to let the case be filed. The power to review is complete in any case of which the court of common pleas acquires jurisdiction according to the rule prescribed in section 1752, Revised Statutes.

So with section 6709 referred to. “A judgment rendered or final order made by any court of common pleas, or a judge thereof may be reversed, vacated or modified by the circuit court of the county wherein such court of common pleas is located, for errors appearing upon the record.” This section conferring jurisdiction on the circuit court, assumes a case filed, prosecuted and disposed of in the court of common pleas, or before a judge thereof, where the errors, if any, appear of record. It does not contemplate a case which was never filed in the court of common pleas for want of leave to enter that court, of which no record is required to be kept.

It may be urged, that if the foregoing sections do not cover the case, authority for the holding of the circuit court is found in section 6707, Revised Statutes, which provides: “An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, * * * is a final order which may be vacated, modified, or reversed, as provided in this title. ’’

It will not be claimed that the refusal of leave to file a petition in error in the case at bar, is an order of the common pleas court made in an action, because the application for leave was not an action, and the refusal of leave was not made in any action.

Was such refusal “an order affecting a substantial right made in a special proceeding,” under section 6707, Revised Statutes?

The circuit court decided in the affirmative and justifies its decision on that view of the section. But is the position sound as applied to this case?

The application for leave to file a petition in error, cannot be dignified with the name of a proceeding, special or otherwise. The term “special proceeding” is sometimes defined as a proceeding in a court which was not, under the common law and equity practice, either an action at law or a suit in chancery. The term is used in code states in contradistinction ‘>to “ action. ’ ’ Encyclopedia of Pleading and Practice, Yol. 1, p. 112.

The defendant in error sought to institute a proceeding. He could do so only upon leave of the common pleas court or a judge thereof. The asking leave is not a special proceeding, and does not become such until the door of the court is opened for its entrance. The application may be made to a judge of the court in or out of vacation. It is not entitled to a place on any docket until the leave is granted. We think it entirely clear that such application is not a special proceeding, but a request for leave to file a proceeding to review' the judgment of the mayor.

If the circuit court is right in its judgment the bar provided by section 1752, Revised Statutes, is useless, and its repeal should be recommended, because if the refusal of leave to file is reviewable in the circuit court, it would be as well perhaps, that there be no restriction on the remedy of prosecuting error from the mayor’s court, so that all cases for the violation of municipal ordinances may be filed in the common pleas court without let or hindrance.

But we are convinced that such is not the policy of our law upon the subject, to the end that the punishment of offenders against municipal ordinances, may be summary, and that some merit in the errors assigned against the mayor must be shown to' the court of common pleas or judge thereof before a case for review reaches a place on the docket of that court, and it was entirely competent for the legislature to say, as we think it has said, that unless leave to file proceedings in error is granted, the case shall end. This construction of section 1752, Revised Statutes, was adopted in Carroll v. O’Conner, 25 Ohio St., 617, and in Rothwell v. Winterstein, 42 Ohio St., 249, where similar provisions were under consideration.

The judgment of the circuit court is reversed, and the petition in error filed in the circuit court is dismissed.

Judgment reversed.

Spear, O. J., Davis, Shauck, Crew and Summers, JJ., concur.


author: Shauck, J.

text:
    Charles v. Fawley et al.

      Judgments and orders may be entered nunc pro tunc, when— Petition in error for reversal may be filed in Supreme Court, when — Act to amend requirement in appeal relates to remedy, when — Section 79, Revised Statutes — Court procedure — Effect of amendment of statute upon pending action.

    1. Judgments and orders may be entered nunc pro tunc in furtherance of justice only, and when an order dismissing an appeal is SO' entered by the circuit court, a petition in error for its reversal may be filed in the Supreme Court at any time within four months from the date of its actual entry.
    2. An act to amend the statutory requirement respecting notice of an intention to appeal from the judgment of the court of common pleas to the circuit court, with a view to a trial dé novo, relates to the remedy, and, unless the amending act expressly provides otherwise, a party may, under favor of section 79, Revised Statutes, give such notice in the mode prescribed by the statute in force at the commencement of the original action.
    (No. 8454

    Decided November 1, 1904.)
    Error to the Circuit Court of Highland county.
    Suit was brought by one of the parties in the court of common pleas of Highland county, June 14, 1901, for the partition of real estate. On October 13,1902, a final judgment was rendered in the case and the plaintiff in error, being dissatisfied therewith, entered upon the journal of the court of common pleas notice of his intention to appeal to the circuit court. The amount of the appeal bond was fixed, and the bond was executed. On November 19, 1902, the defendants in error filed in the circuit court a motion for the dismissal of the appeal upon the ground that the appellant had not filed a written notice of his intention to take such appeal. On April 22, 1903, the circuit court entered an order as of November 19, 1902, sustaining such motion and dismissing the appeal. The present petition in error was filed in this court on May 22, 1903, for the reversal of the order of dismissal.

      Mr. H. M. Huggins and Mr. L. B. DucJcwall, for plaintiff in error, cited and commented upon the following authorities:
    2 Bouv. Law Dic., 247; Neracker Sprinkling Co. v. Eureka Co., 4 Circ. Dec., 493; 8 C. C. R., 516; Insurance Co. v. Myers, 59 Ohio St., 335; Hays v. Olentangy Co., 24 O. C. C., 354; sees. 79, 5227, 6707, Rev. Stat.; 95 O. L., 66.

      Mr. J. F. Wilson, for defendant in error, cited and commented upon the following authorities:

      Railway Co. v. Thurstin, 44 Ohio St., 525; Young, Treas. v. Pennsylvania Co., 46 Ohio St., 558; Senff v. Pyle, 46 Ohio St., 102; Landon v. Reid, 10 Ohio, 202; Dial v. Holter, 6 Ohio St., 228; Young v. Shallenberger, 53 Ohio St., 291; Cincinnati v. Steadman, 53 Ohio St., 312; Dowty v. Pepple, 58 Ohio St., 395; Coe v. Erb, 59 Ohio St., 262; Miller v. Albright, 5 Circ. Dec., 585; 12 C. C. R., 534; 1 Freeman on Judgments, sec. 56; Neracker Sprinkling Co. v. Eureka Co., 4 Circ. Dec., 493; 8 C. C. R., 516; Hays v. Olentangy Co., 24 O. C. C., 354; Insurance Co. v. Myers, 59 Ohio St., 335; Westerman v. Westerman, 25 Ohio St., 507; Rouse v. Chappell, 26 Ohio St., 306; Browne, Assignee, v. Wallace, 66 Ohio St., 57; secs. 5223, 5227, 6710, Rev. Stat.; 67 O. L., 113.
   Shauck, J.

We do not inquire whether the circuit court may, for any purpose, enter an order of this character nunc pro tunc. Orders may always be so entered in furtherance of justice, and it may be assumed that for some purposes the order in the present case might operate from the earlier date. We have only to inquire whether the appellant’s right to prosecute error for the reversal of that order was thereby defeated, his petition in error having been filed in this court for that purpose within four months of the date when the order was actually entered by the circuit court, but not within four months of the date when, by its terms, it was to operate. In support of the conclusion that it was so defeated it is urged that the statute limiting the time within which petitions in error may be filed began to run not on April 22, 1903, when the order was actually entered, but on November 19, 1902, when, by its terms, it was to take effect. We are urged to adopt this view although the circuit court is a court of record, and although it is imperatively required that the transcript of its record to be filed here with the petition in error must contain the order or judgment whose reversal is sought. Since the right to prosecute error did not accrue until the order became a matter of record, the sum of the contention for the defendants in error is that, an order which may be entered nunc pro tunc only in furtherance of justice, has the effect to defeat the right to prosecute a proceeding in error which is expressly conferred by the statute.

The petition in error having been filed within four months after the entry of the order whose reversal is sought, we have to inquire whether the circuit court properly dismissed the appeal. By its terms the order of dismissal appears to have been made because the appellant had not, within three days after entry of the final judgment in the court of ■ common pleas, filed a written notice of his intention to appeal, in accordance with the requirement of section 5227, Bevised Statutes, as amended March 25, 1902, and in force when the order was entered. The circuit court so concluded, although the record contained notice of such intention entered upon the journal of the court of common pleas in accordance with the requirement of the section before said amendment and as it was in force when the suit was instituted in the court of common pleas. The amending act of March 25,1902, makes no provision respecting its operation or effect, except that it “shall take effect and be in force from and after its passage.” Consistency of interpretation is of first importance, and it requires us to assume that the legislature has knowledge of the acts which it has passed, and that ■ this act was so passed in view of the provisions off. chapter five, relating to the operation of statutes. Section 79 is a part of that chapter, and it provides that, “Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed; nor shall any repeal or amendment affect causes of such fiction, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.” That the effect of this section is to prevent the application of the amendment of March 25, 1902, to the present case would seem to be clear. That it prevents the application of an amending statute to the right of appeal in an existing case, in the absence of a provision in the amending statute expressly making it so applicable, is tbe sole point decided in Bode, Admr. v. Welch, 29 Ohio St., 19. In the opinion it is said that it matters not whether the right to appeal is to be regarded as a subsisting cause-of action or proceeding, or whether the case in which the right exists is to be regarded as a pending action or proceeding. The conclusion of the circuit court is not supported by any of the decisions respecting proceedings in error for the reversal of the judgment. Such proceedings recognize the termination of the original case. To institute them it is required that a petition in error be filed in the reviewing court, and to acquire jurisdiction of the person of the adverse party there must be the issuance and service of summons; whereas, the steps necessary to effect an appeal are taken in the court having jurisdiction of the original action and the adversary party is bound thereby without summons. An obvious analogy is found in the doctrine of lis pendens where the distinction between appeals and proceedings in error, in this respect, is recognized. The property which is the subject of a suit is bound by its event not only while the case is pending in the court of first resort, but also while it is pending in a court to which it may be taken by appeal; but where a review of the judgment is sought by proceedings in error, the suit is regarded as ended by the judgment of the court of first resort. This distinction was recognized in Heirs of Ludlow v. Kidd’s Exrs., 3 Ohio, 541, where Sherman, J., speaks of an appeal as a proceeding in the original cause, and concludes that its effect is to continue the cause and suspend the decree of the inferior tribunal until the judgment of the tribunal to which the appeal is taken.

The conclusion of the circuit court is not reconcilable with the provisions of the statute or with the decided cases, and its order dismissing the appeal will he

Reversed.

Spear, C. J., Davis, Price, Crew and Summers, JJ., concur.