author: Spear. J.

text:
    The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Bemis.

      Time of commencing action — Sections 88 and Jf991, Rev. Stat.— Suit for false imprisonment brought in United States circuit court — Against two corporations, one resident of New York and one of Ohio — Demurrer of New York corporation sustained — Ohio corporation pleaded non-juris diction and case dismissed — Proceeding held to be commencement of action.

    A party brought, within proper time, suit for false imprisonment in the United States circuit court for the southern district of Ohio against two corporations, one a resident of the state of New York and the other a resident of Ohio. The Ohio corporation answered to the merits. The New York corporation demurred to the petition for that the same did not state facts sufficient to constitute a cause of action, which was sustained and judgment given for that company against the plaintiff. The Ohio corporation then, by amended answer, pleaded that the court was without jurisdiction for the reason that there is no controversy between the citizens of different states. The cause was then heard on the motion of defendant to dismiss, which was sustained and the cause dismissed on the ground that the court had no jurisdiction over the parties or subject matter. Held: That the proceeding was the commencement of an action, within the meaning of section 4991, Revised Statutes; that the plaintiff failed otherwise than upon the merits, and is entitled to commence a new action within one year from such date although, under section 4983, Revised Statutes, his action would be barred.
    (Decided January 22, 1901.)
    Error to tbe Superior Court of Cincinnati.
    The action below was by Frank Bemis against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company to recover damages for false imprisonment. It appeared by the petition that the action was brought more than one year from the time the cause of action arose, but that within one year from such time a suit had been brought on the same cause of action in the United States circuit court. Also that the Wagner Palace Car Company, a New York corporation, was made defendant in the action in the circuit court, and that, a demurrer to the petition by that company being sustained, it was dismissed from the action. It further appeared that afterwards the plaintiff’s case was dismissed by the circuit court on the ground that that court was without jurisdiction of parties or subject matter because there is no controversy between citizens of different states.
    To the petition in this case the defendant Company demurred on the ground that the claim was barred by the statute of limitations. This demurrer was sustained by the Special Term, and the case dismissed. In the General Term this judgment was reversed and the Company brings error.

      Wm. W. Ramsey, and Maxwell & Ramsey, for plaintiff in error.

      Thos. L. Michie and Joel 0. Glore, for defendant in error.
   Spear. J.

It is conceded that the action is barred and that the dismissal of the case by the court below at Special Term was right, and its judgment should be affirmed and the judgment of reversal by the General Term reversed, unless the cause is saved by section 4991, Revised Statutes, which is as follows: “If, in an action commenced, or attempted to be commenced, in due time, a judgment for the plaintiff be reversed, or if the plaintiff fail otherwise than upon the merits, and the time limited for the commencement of such action has, at the date of such reversal or failure, expired, the plaintiff * * * may commence a new action within one year after such date.”

But the contention of counsel for plaintiff in error is that the cause does not come within the provision of the section, for the reason that the circuit court never had jurisdiction of the case, and therefore no action was ever commenced; the whole proceeding in that court being a nullity. They cite, in support of this proposition, the case of Sweet v. Electric Light Company, 97 Tenn., 252, where it is held that: “The commencement of suit in a court having no jurisdiction thereof is not within Code, section 3449 (M. & V.), providing that, if an action is commenced within the term limited by the statute of limitations, and judgment rendered therein against the plaintiff on grounds which do not conclude his right of action, a new action may be commenced within a year thereafter, even if the term of the statute had then expired.” The court also say: “An action commenced in a court not having jurisdiction to entertain it is no action in the sense of the statute. The matter stands the same as if no suit had been brought or attempted to be brought, and the limitation runs from the date of the injury. If the action is brought in a court without jurisdiction, the whole proceeding is void and of no effect.”

It is further contended by counsel that there was not even an attempt to commence an action because, the commencement of an action implying that it must be begun in a court of competent jurisdiction, it follows necessarily that the attempt to commence the action must be brought in a court of the same character. And, besides, the words “attempt to commence an action” in this connection are defined by section 4988, Revised Statutes, as follows: “An attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this chapter, when the party diligently endeavors to procure a service; but such attempt must be followed by service within sixty days.”

We are of opinion that the entire position of counsel rests upon a misconception of the import of the term “action.” It lies in assuming that, in order to constitute a proceeding in a court “an action,” the court must be competent to adjudicate the rights of the parties, and render a final judgment determining such rights, and that, therefore, the proceeding instituted and pending in the United States court was something else than an action. Our code abolished the distinctions theretofore existing between actions at law and suits in equity, and the forms of such actions and suits, and provided how actions should be commenced, but it nowhere undertook to define an action. That was left to the common understanding of the profession. In several of the state codes it is given thus: “An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” Code California, section 22; Code N. Y., section 2; Code N. C., 126. Bouvier, in his Law Dictionary, page 88, defines an action to be: “The formal demand of one’s right from another person or party made and insisted on in a court of justice.” The same definition is given in substance by Black in his Law Dictionary. Rapalje & Lawrence define it as: “A civil proceeding taken in a court of law to enforce a right.” Abbott in his Law Dictionary, page 21, observes: “A term which is used so often must insensibly acquire some variations of meaning. Thus action, in its broadest sense, includes all the various proceedings ordinarily allowed in courts of justice; more narrowly, and as opposed to prosecution, it includes the modes allowed to individuals for enforcement of civil rights or redress of private wrongs, excluding proceedings instituted by the government for the punishment of offenses; or, as opposed to suit, it means an ordinary proceeding according to the course of courts of law, excluding resort to equity or to remedies of equitable cognizance.” Mr. Waite, in his work on Actions and Defenses, 10, gives this: “A civil action is one prosecuted for the establishment or the recovery of a right, or the prevention .of a wrong, or the redress of an injury. * * * The term ‘action’ includes all the proceedings from its commencement to its termination; and, therefore, the proceeding is called an action until the rendition of the decision, decree or judgment.” Professor Field, in his Lawyers’ Briefs, has this: “In a legal sense an action is a mode of proceeding in court for the enforcement of a private right or the redress or prevention of a private wrong, or the punishment of a public offense.” In the Matter of Hunter, 6 Ohio, 500, it is observed by Wright, J.: “Action may be defined as an abstract legal right in one person to prosecute another in a court of justice; and suit is the actual prosecution of such right in a court of justice.” In no text book, and in no reported case cited to us save Sweet v. Electric Light Company, supra, is there any statement or intimation that the question of the jurisdiction of the court has any potency whatever in determining what is, and what is not, an action, and we are convinced that in Ohio, whatever may be the rule elsewhere, there is no authority for the distinction which counsel seek to draw, and we are equally clear that it rests upon no substantial ground. If right as to this, then the conclusion inevitably follows that the dismissal for want of jurisdiction does not take the case out of the effect of the remedial statute, for the proceeding, Avhatever it may have been, was properly commenced; the defendants appeared, one by general demurrer and the other by answer.

Another vieAv of the statute leads to the sáme result. Whether, within the meaning of section 4991, the suit brought in the United States court amounted to the commencement of an action or not, nevertheless, the plaintiff having shown by its petition that he had a cause of action, and having presented it in the usual Avay to a court of justice, one which, had the parties been residents of different states, Avould have had full jurisdiction to hear and determine their rights, must be held to at least have attempted to commence an action, unless the failure to bring it in a proper court is to be regarded as negligence, laches, or a Avant of good faith. It is claimed by plaintiff in error that the failure should be condemned on that ground, and that the bringing of the suit in the circuit court can have no more force than if the petition had been filed before a justice of the peace, or a mayor, or a police judge. To properly pass upon this it may be well to consider how other courts have treated cases involving kindred questions.

The rule in equity respecting the effect, generally, of the dismissal of an action, has not been in doubt. In Hughes v. United States, 4 Wall., 232, a chancery case, Avhere there had been a bill dismissing a former suit for want of jurisdiction, and for absence of proper parties, and on the ground that the petition was defective, uncertain, and insufficient in the statement of the cause of action, Mr. Justice Field states the rule thus: “It requires no argument to say that judgments like this are no bar to the present suit. In order that the judgment may constitute a bar to another suit, it must be rendered in a proceeding between the same parties, or their privies, and the point in controversy must be the same in both cases, and must be determined on its merits. If the first suit was dismissed for defective pleading, or parties, or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on any grounds which do not go to the merits of the action, the judgment rendered will prove no bar to another suit.”He cites: Walden v. Bodley, 14 Pet., 156, and Greenleaf on Ev., sections 529 and 530. See, also, Spear v. Newell, 13 Vt., 293.

The rule is not different at law respecting the rule of res judicata. Nor, as we think, do the authorities justify the conclusion that a mistake as to jurisdiction should work irreparable prejudice. Smith v. McNeal, 109 U. S., 426, involved an application of the same section of the Tennessee statute which is invoked in Sweet v. Electric Light Company, supra. The first suit was brought in the circuit court of the United States for the western district of Tennessee, for the recovery of land, within the seven years prescribed by the statute of limitations of that state. It was dismissed, and the second suit was brought within one year thereafter, but more than seven years after the cause of action arose. The court dismissed the suit on the ground that it had “no jurisdiction of the cause of action in plaintiff’s declaration alleged and set forth.” An additional fact existed which, if pleaded, would have given the court jurisdiction. Mr. Justice Woods, in tlie opinion, says: “The first suit was dismissed because the declaration did not state jurisdictional facts upon Avhich tlie right of the court to entertain the suit Avas brought.” And the court held the party entitled to tlie benefit of the remedial article of the Tennessee code, the first judgment not being “upon any ground concluding their right of action, nor have they been guilty of such negligence or carelessness in the bringing of the first suit as should exclude them from the benefit of the said article.” And in support of the latter proposition the learned Justice cites the following cases: Cole v. The Mayor and Aldermen of Nashville, 5 Cold. (Tenn.), 639; Memphis & Charleston R’d Co. v. Pillow, 9 Heiskell, (Tenn.), 248; Weathersly v. Weathersly, 31 Miss., 662; Woods v. Houghton, 1 Gray, 580; Coffin v. Cottle, 16 Pick., 383; Givens v. Robbins, 11 Ala., 156; Skillington v. Allison, 2 Hawkes (N C.), 347; Lansdale v. Cox, 7 J. J. Marsh. (Ky.), 391; Phelps v. Wood, 9 Vt., 399; Spear v. Newell, 13 Vt., 288; Matthews v. Phillips, 2 Salk., 424; Kinsey v. Heyward, 1 Ld. Raym., 432.

A reference to some of these Avill shed further light on the subject. Woods v. Houghton, 1 Gray, 580, Avas an action of contract brought in the county of Worcester. A previous action to recover on the same note had been brought within the life of the note in another county against the defendant and a trustee, neither of Avhom resided in that county, and Avas dismissed or abated, on motion of the defendant, for want of jurisdiction. This was set up as a bar and it was there argued, as it. is here, that the court having no jurisdiction over it, it was a nullity, but the court held othenvise. The statute provided if, in any action duly commenced within the time allowed therefor, the right shall be abated or the action otherwise defeated for any matter of form, the plaintiff may commence a new7 action, etc. Metcalfe, J., in the opinion, used this language: “The words used in the statutes declaring the cases in wdiich a second action may be maintained after a failure of the first, have always been construed favorably for the plaintiff, and never have been held to have a technical meaning; but as said by Shaw*, C. J., in Coffin v. Cottle, 36 Pick., 386, are meant to declare that ‘where the plaintiff has been defeated by some matter not affecting the merits, some defect or informality wdiich he can remedy or avoid by a new7 process, the statute shall not prevent him from so doing provided he follow7 it promptly by suit wdthin a year.’ ” Allen v. Sawtelle, 7 Gray, 165, wrns an action on a note. A former suit had been dismissed on motion of the defendant for the reason that it had not been seasonably entered on the docket by the clerk. Herrick, J., observes: “It is certain that the plaintiff did not mean to permit his debt to remain for such length of time as would bar him from its recovery, without an attempt to enforce it. He used the diligence required by the law7 when .he instituted his first suit against the defendant.” The second action was sustained. Caldwell v. Harding et al., Admrs., 1 Lowmll’s Decisions (U. S. C. C., district of Mass.), 326, was an action on an insurance policy. Defense, the bar of the statute of limitation of' Massachuetts, wdiich limits actions against administrators to twyo years after giving bond. Reilly that a previous case brought in the United States court for the southern district of New7 York, w7as dismissed otherwise than on the merits and the exception of the Massachusetts statute. The first case was decided for defendants on the sole ground that the court had no jurisdiction of actions against administrators appointed in and under the laws of Massachusetts. In disposing of the case, Lowell, J., remarks: “The Supreme Court of Massachusetts have given to this exception a liberal interpretation in favor of meritorious creditors. The tendency of their decisions is to bring all mistakes which have defeated actions, independently of their merits, within the saving of the statute.” And the second action was maintained. Young v. Davis, 30 Ala., 213; State Bank v. Magness, 6 Eng. (Ark.), 343, and McCormick v. Eliot, 43 Fed. Rep., 469, give effect to a similar spirit in interpretation. That the code generally is to be liberally construed to promote the ends of justice, and that section 4991 is entitled to the same liberal treatment, see Meisse v. McCoy, 17 Ohio St., 225; Treasurer v. Martin, 50 Ohio St., 197, and see also Stahl v. Van Vleck, 53 Ohio St., 136, and Burgoyne v. Moore, 12 O. C. C., 31.

it is not to be understood that the statutes of the several states are identical, either in form or language, with our own. But there is a striking and significant similarity in general effect. The Tennessee Code is not as broad as ours inasmuch as our statute gives remedial effect to an attempt to begin an action, which the statute of our sister state does not; and no statute which has come within our notice is more liberal in terms than ours. In this connection attention may be given to the citation by counsel of section 4988 as having an important bearing upon the question by giving a meaning to the words “attempt to commence an action.” That section is to the effect that an attempt shall be deemed equivalent to a commencement where a party endeavors to procure a service and procures it within sixty days. The pertinency of the objection is not apparent. Section 1987 is to the effect that an action shall be deemed commenced within the meaning of this chapter as to each defendant'at the date of the summons which is served on him, etc., and the succeeding section (the one cited) would seem to liave for its purpose only the helping out of a party who had failed in his first effort to procure service. It does not in terms, and we think not by inference, exclude other appropriate meanings which naturally belong to the words.

Nor will we be understood as intending that the cases heretofore referred to are on all fours with the case at bar. A number are not. Rut we are unable to see why Smith v. McNeal does not cover the case adequately, and the others do clearly show the trend judicial opinion, and that it is in the direction of the conclusion we have announced. -i

It must be conceded that the weight of authority supports the proposition, as a general rule, that a dismissal of a former suit for want of jurisdiction in the court in which it is brought is such a failure as will not constitute a bar to another action; and it seems fairly well established that such a dismissal will leave the plaintiff, by favor of the remedial statute where such exists, to pursue his remedy farther, even though by the general statute of limitations his action would be barred. But to avoid the effect of the general proposition as applied to this case, counsel seek to draw a distinction which, reduced to its last analysis, is that even though a dismissal for want of jurisdiction of the parties, or for defect in bringing the real case before the court where if all the facts were stated, it would have jurisdiction, should be held not to prevent the bringing of an action within statutory time thereafter^ yet that the bringing of such a suit in a court which cannot possibly acquire jurisdiction of the subject matter oí it, as it is urged, is the fact in the case at bar, is equivalent to the filing of the same before a justice of the peace, or mayor, or the police court, and is a nullity. In other words, inexcusable laches and bad faith is shown. This matter of laches and of bad faith is treated in many cases as of prime importance. In Anderson v. Bedford, 4 Cold. (Tenn.), 464, it is held that an action dismissed by the court during trial for champerty on the part of the plaintiff shown by the evidence, is not within the exception, the court, Millikin, J., remarking that “in no case of which we are advised, when the failure of the action is due to default, wrong or laches of the plaintiff, has it been sufficient to authorize the bringing of another suit under the exception of the statute.” But how does the laches or bad faith appear? The proposition is, that a lawyer may make a mistake in the bringing of an action, as to whether the court may acquire jurisdiction of the parties, or in the statement of jurisdictional facts, and for either reason fail, and it will not, under the authorities, preclude his client from another effort; but if he make a mistake respecting the jurisdiction of the court generally, and so fail, his client is without further remedy. The distinction carries the point of technicality to the extreme limit, and is, we think, too fine. It fails to distinguish because of any principle involved. Questions of jurisdiction are often of the very nicest which láwvers have to determine for their clients and courts to decide for litigants. It is not given to all lawyers to know all the law, or all the decisions of courts; indeed instances are not wanting where courts themselves have shown ignorance in both respects. Unusual acumen and prescience is not demanded and we think it clearly unreasonable to compare the mistake in the present case as akin to the bringing of such a case before a justice of the peace or a mayor. To presume the United States court would have jurisdiction in a cause against two defendants, one of whom was a citizen of another state, and to be ignorant of holdings by United States courts to the contrary, (if such decisions have been made), however mistaken, can hardly be treated as importing negligence or bad faith, and it is significant that the defendant company, present plaintiff in error, did not plead want of jurisdiction until the case had been in court over a year, and then by an amended answer. It is matter of common knowledge that corporations, and especially railroad companies, where sued in a state court, are solicitous of procuring removal to a United States court, and it is not unfair to impute to counsel the supposition that, by going in the first instance to the latter court, they wrould shorten the controversy.

It is not reasonable, we think, to conclude that the legislature intended, by the section in question, to favor suitors who had failed in a former suit because of the lack of jurisdiction of the parties, or because a jurisdictional fact, though existent, had not been stated, and deny like favor to suitors who had happened to fail because the court in which their attempt had been made was without jurisdiction of the action on the facts as they actually existed. If such distinction was intended we utterly fail to see any principle on which it could find support. On the other hand it seems quite apparent that the intention was to secure that class of suitors from loss, who, without laches or fault, but from causes incident to the administration of the law, are compelled to abandon a present action without a determination of its merits, and give to such, without distinction,, an opportunity in reasonable time within the statute, to renew such action.

Our conclusion is that the proceeding in the United States court was the commencement of an action within the meaning of section 4991, Revised Statutes, and that the plaintiff, having failed otherwise than on the merits, is entitled to maintain a second action.

Judgment affirmed.

•Shauck, C. J., and Minshall, Williams, Buricet and Davis, JJ., concur.


source: Caselaw Access Project

author: Bueket, J.

license: Public Domain

text:
    Miller et al. v. Hixson as Treasurer of Highland County.

      Retroactive laios — Statute imposing neto or additional burden, etc., as to past transactions is retroactive — And in conflict with Sec. 28, Art. 2, of the constitution — Invalidity of Sec. lf812, Rev. Stat. — Act of April 17, lS86 — Secs. 1/811/ and 1/813, Rev. Stat., not applicable to pikes constructed in special taxing districts, when — Purchaser of bonds under One Mile Pike Law bound to take notice of limitation of taxation, when — Result of mistake by purchaser — Constitutional law.

    1. A statute which imposes a new or additional burden, duty, obligation, or liability, as to past transactions, is retroactive, and in conflict with that part of section 28, article two of the constitution, which provides that, “The general assembly shall have no power to pass retroactive laws.”
    2. The amendment of section 4812, Revised Statutes, 83 O. L., 85, passed April 17, 1886, adding five years to the period for which extra taxes might be levied under the One Mile Pike Law, is retroactive and void as to such pikes as had been constructed before the passage of that amendment.

      3. Sections 4814 and 4815, Revised Statutes, are not applicable to pikes constructed in special taxing districts where the extra tax for such pike is required to be levied alike on the valuation of both real and personal property within the district.
    4. A purchaser of bonds, issued under the One Mile Pike Law, is bound to take notice of the limitations upon the power of taxation, the extent of the special taxing district, and of the valuation of the property therein; and if he makes a mistake, the loss must fall upon him, rather than upon the property owners in such special district.
    (Decided January 22, 1901.)
    Error to the circuit court of Highland county.
    A. L. Miller and his associates, plaintiffs in error, and also plaintiffs below, filed their petition in the court of common pleas on April 9, 1897, against Charles E. Hixson as treasurer of Highland county, which petition, omitting the caption and signatures, is as follows:
    “The plaintiffs state:
    “1. They have been heretofore taxpayers on a certain free turnpike in said county, known as the Hillsboro and West Union free turnpike road number 51.
    “The question to be determined herein is one of a common interest of many persons, who have also been taxpayers on said free turnpike, and the plaintiffs bring this suit for all such taxpayers.
    “2. On the fifth day of February, A. D., 1883, certain landholders owning lands within one mile of said free turnpike presented a petition to the board of commissioners of Highland county, Ohio, asking the appointment of commissioners to lay out and establish a free turnpike road between the corporation line of the village of Hillsboro and the crossing of Brush creek, at Johnson Forge, within said county, and stated in said petition that they desired the county commissioners to levy an extra tax, not to exceed ten mills on the dollar valuation in any year, on the lands and taxable property within the bounds of the road, and that they desired said .tax to continue eight years.
    “3. Thereupon the county commissioners of said county, on the seventh day of February, A. T).. 1883 ordered ‘that the prayer of said petition be granted and said road be established a free turnpike road,’ said free turnpike to be denominated ‘The Hillsboro and West Union free turnpike road No. 51,’ and that a tax of ten mills for the period of eight years on all the property, both real and personal, each year be levied for the construction of said free turnpike road, and appointed three freeholders of said county to be commissioners of such free turnpike road, who duly qualified as such commissioners and proceeded to lay out and establish such free turnpike road between the points named in the petition, and returned to the county commissioners a map and profile of such road, including on the map, as nearly as could be done, the names of the land owners whose property would be liable to be taxed for its construction .
    “4. Thereupon such proceedings Avere had by the board of commissioners, and the auditor of said county, that a tax of ten mills on the dollar' for the term of eight years was, by said auditor, entered upon the tax duplicate of said county on all the lands and. taxable property Avithin the bounds of said road as laid out and established, for the purpose of constructing the same; and the road commissioners theretofore appointed, proceeded in its construction.
    “5. The original petition presented to the board of commissioners of Highland county, as aforesaid, Avas not reneAved at the expiration of eight years from the time said tax was levied.

      “6. On the seventh day of July, A. D., 1884, the county commissioners of Highland county, by an order entered on their journal, continued the tax originally levied for constructing said road, ‘at the rate of ten (10) mills on the dollar on all land and taxable property within the bounds of said road, for the period of five years in addition to said levy heretofore made,’ and ‘further ordered that the county auditor enter the same upon the duplicate for collection according to law.’
    “7. Thereupon the auditor of said county, in pursuance of said action of said commissioners, did enter upon the tax duplicate of said county ten mills upon the dollar upon all lands and taxable property within the bounds of said road for the period of five years in addition to that originally levied for the term of eight years, as asked for in the petition for said turnpike.
    “8. The period of time during which taxes could be levied upon lands and personal property within the bounds of said free turnpike road and collected, to pay for its construction or any indebtedness incurred in its construction, expired with the December annual payment of taxes for the year A. D., 1895; that being the limit of time for the levy and collection of such taxes as fixed by the petition, for said road, the aforesaid action of the county commissioners of Highland county, and the law of Ohio authorizing the construction of such free turnpike in pursuance of such petition, as such law existed at the time such petition was filed, and for a long time thereafter, and until all contracts for the construction of said road had been made and said road completed.
    “9. On the fifth day of September, A. D., 1887, the commissioners of Highland county, by an order entered on their journal, continued the tax originally levied for constructing said road for another period of five years, beginning at the expiration of the first extension of time for five years, as hereinbefore set forth, at the rate óf ten mills on the dollar on all lands and personal property within the bounds of said road, and further ordered that the county auditor enter the same upon the duplicate for collection.
    “10. Thereupon the auditor of said county, in pursuance of said last mentioned action of said commissioners, did enter upon the tax duplicate of said county ten mills on the dollar upon all the lands and personal property within the bounds of said road for the period of five years, in addition to that of eight years in pursuance of the petition for said road, and in addition to that of five years as the time for the levy of said taxes was first extended as aforesaid.
    “11. Said duplicate has come into the hands of the defendant, the treasurer of said county. Said treasurer, the defendant, is proceeding to collect, and will collect, the taxes levied by the auditor of said Highland county, in pursuance of said last mentioned action of the commissioners of said county, unless restrained.
    “12. The action of the commissioners of Highland county, hereinbefore set forth, whereby they attempted to extend the time for the levy and collection of said taxes for a period of five years in addition to the period of eight years fixed by the petition for said road, and in addition to the period of five years during which the time was first extended for the levy and collection of such taxes, is illegal and void. The action of the auditor of said county, in pursuance of said action of the county commissioners, and the a.ction of tlie defendant, in pursuance thereof, as above set forth, is illegal and void.
    “Wherefore the plaintiffs pray that until the final hearing of this cause the defendant may be temporarily enjoined from collecting said taxes or any part thereof, and that upon final hearing he may be perpetually so enjoined, and for any and all relief to which they and those for whom they sue may be entitled.”
    To this petition the treasurer, defendant below, and defendant in error here, demurred on the ground that the petition does not state facts sufficient to constitute a cause of action. The demurrer was sustained by the court and exceiitions noted; and on leave an amendment was filed to the petition as follows :
    “The plaintiffs, having obtained leave of court so to do, amend their petition heretofore filed herein by inserting at the end of the fourth paragraph thereof, the following:
    “4a. Said road commissioner, in laying out and establishing said free turnpike, and in returning to the board of county commissioners a map and profile of said road, including thereon the names of the landholders whose property would be liable to be taxed for its construction, by mistake included within the bounds of the taxing district, as so reported, all the lands within one mile on either side of said road, although certain unimproved county roads unconnected with the same ran upon either side thereof within less than two miles. Afterwards, by the decree and judgments of this court, duly made, in divers suits brought by land owners whose lands were more than one-half the distance between said free turnpike and said unconnected roads, the lands and personal property so lying beyond one-half such distance were released from taxation on said free turnpike, and the bounds of said taxing district and the quantity of lands and personal property liable to be taxed for the construction of said free turnpike were largely reduced.
    “4b. Said road commissioners issued bonds for the purpose of constructing said free turnpike. A part of said bonds were made payable at a date exceeding the number of years set forth in the petition. The taxes levied upon said taxing district by virtue of said petition and the proceedings thereunder, for the construction of said free turnpike, were not “divided in such manner as to meet the payment of the inter-, est and principal of said bonds.”
    “4d. There is now outstanding and unpaid of said bonds, so issued and sold, the sum of fourteen thousand and ninety-one dollars- and fifty-eight cents, principal and interest. There are now outstanding and unpaid certificates of indebtedness issued by said road commissioners to pay for work and material in the construction of said free turnpike, the sum of twenty-four hundred and seventy dollars and fifty-seven cents, principal and interest.
    “4e. The full amount realized annually from the levy of taxes upon the lands and personal property in said taxing district, as the same has been reduced as aforesaid, for the payment of said indebtedness is insufficient to pay the interest annually accruing thereon.”
    This amendment Avas stricken out on motion of defendant as .being irrelevant, and exception taken. The plaintiffs not desiring to further plead the court held the petition to be insufficient and dismissed it at costs of plaintiffs, to all of which plaintiffs excepted. The circuit court affirmed the judgment, and thereupon the plaintiffs came here for relief.

      Huggins & Watts, for plaintiffs in error,
    cited the following authorities: Cooley on Taxation, 479 (1st Ed.); Sedgwick on Construction of Constitution, 194; Gillman v. Kansang, 4 J. R., 45; McCabe v. Emerson, 6 Har. Penn. R., 111; Rairden et al. v. Holden, 15 Ohio St., 207; The Society v. Wheeler, 2 Gallison R., 139; Bow v. Norris, 4 N. H. R., 16; Clark v. Clark, 10 N. H. R., 380; Greenlaw v. Greenlaw, 12 N. H. R., 200; Kennetts Petition, 4 Fasties R., 139; Cincinnati v. Seasongood, 46 Ohio St., 296; Trustees, Cass Tp. v. Dillon, 16 Ohio St., 38; State ex rel. Anderson v. Harris, 17 Ohio St., 608; State ex rel. Bates v. Richland Tp., 20 Ohio St., 362; Ohio ex rel. Holtz v. Commissioners, 41 Ohio St., 423; Clark v. Clark, 10 N. H., 380; Davis v. Minor, 1 How., 183; Woart v. Winnick, 3 N. H., 483; Insurance Co. v. Flynn, 38 Mo., 483; Kennebec Purchase v. Laboree, 2 Greenland, 275; Aldridge v. Railroad Co., 2 Stew and P., 199; Rawls v. Kennedy, 23 Ala., 240; Towle v. Railroad Co., 18 N. H., 547; Bellevue v. Peacock, 89 Ky., 495; Cooley on Taxation, 2 Ed., 678 and 328; Cooley Const. Lim., 289, (4th Ed.) ; Dillon on Mun. Corp., 521 and note; State v. Kirkley, 29 Md., 85; Gould v. Sterling, 23 N. Y., 464; Clark v. DesMoines, 19 Iowa, 209; Veeder v. Lima, 19 Wis., 280; Oakland v. Skinner, 94 U. S., 255; Clark v. Cram, 5 Mich., 154; Torreo v. Milbury, 21 Pickwick, 67; Johnston v. Becker Co. Coms., 27 Minn., 64; State ex rel. Treadwell v. Commissioners, 11 Ohio St., 183; Aspenwall v. Commissioners, 62 U. S. (21 How.), 539; Bowles v. State, 37 Ohio St., 35; Carlisle v. Hetherington, 47 Ohio St., 245; Norwood v. Baker, 172 U. S., 269; Waln v. City of Beverly, 56 At. Rep., 709; Holliday’s Exrs. v. City of Atlanta, 96 Geo., 377.

      I. McD. Smith and Geo. L. Garrett, for defendant in error,
    cite the following authorities: Baker v. Cincinnati, 11 Ohio St., 534; Anderson v. Brewer, 44 Ohio St., 576; Cooley on Taxation, 3; McCullough v. Maryland, 17 U. S. (4 Wheat.), 428; Mech. & Traders Branch Bank v. DeBolt, 1 Ohio St., 592; Toledo Bank v. Bond, 1 Ohio St., 623; Const. Art. 2, Sec., 28; Cooley on Taxation, 2 Ed., 685, 328, 76, 291; Burroughs on Public Securities, 546; U. S. v. County of Clark, 96 U. S., 211; State ex rel. Bates v. Richland Tp., 20 Ohio St., 362; Commissioners v. Greene, 40 Ohio St., 318; Burgett v. Norris, 25 Ohio St., 308; State ex rel. Holtz v. Commissioners, 41 Ohio St., 422; Butler v. Toledo, 5 Ohio St., 232; State ex rel. v. Cincinnati, 52 Ohio. St., 452; DeBolt v. Ins. Co., 1 Ohio St., 585; State ex rel. Bates v. Richland, 20 Ohio St., 369.
   Bueket, J.

The road in question was a free turnpike road constructed under the “One Mile Assessment Pike” statute, passed March 29, 1875, 72 O. L., 93, and its amendments, and carried into the Revised Statutes as chapter seven, title seven, section 4774 and following sections.

Section 4774 provides that a petition shall be signed and presented to the county commissioners by a majority of those who own lands within the bounds of a free turnpike, asking for the appointment of commissioners to lay out arid establish a free turnpike road between certain named points, stating in such petition that they desire the county commissioners to levy an extra tax tlie amount of which shall not exceed ten mills on the dollar valuation in any year, on the lands and taxable property within the bounds of the road, and also the number of years they desire the levy to continue, not exceeding eight years. By section 4777 it is provided that no such tax shall be levied for an amount or for a term of years greater than that set forth in the petition, unless the petition be renewed, or the county commissioners order an extension of the levy for the purposes stated in section 4812. There was no renewal of the petition in this case. Section 4812 then in force reads as follows :

“Section 4812. The provisions of this chapter shall extend and be applicable to all free turnpike roads heretofore built, now in process of construction, or hereafter to be constructed; and at any time when the county commissioners shall deem it necessary for the purpose of providing the means for completing the same, and liquidating any indebtedness incurred on account of such road, they may continue the tax originally levied for constructing the same for a period not exceeding, in the aggregate, five years, in addition to the levy made on petition, as provided in section forty-seven hundred and seventy-seven.”

As the statute stood when the road in question was petitioned for and constructed, the commissioners had authority to levy ten mills on the dollar each year for eight years by virtue of the petition for the road, and for five years longer by virtue of said section 4812, making in all thirteen years. The ten mills on the dollar of the valuation of real and personal property in the taxing district in the bounds of the road were levied and paid, for the full term of thirteen years.

By an amendment of said section 4812, April 17, 1886, S3 O. L., 85, the period for which a levy might he made for liquidating any indebtedness incurred on account of such road, was extended to ten years in addition to the eight years on petition, thus, making in all eighteen years instead of thirteen years.

The tax complained of in the petition of the plaintiffs in error was levied' under this last amendment of section 4812 adding five years to the period for which a levy of ten mills on the dollar might be made for the purpose of paying the outstanding bonds issued in the proceedings to construct said road.

Plaintiffs in error claim that the power of the commissioners at the time the road Avas constructed was limited to a levy of ten mills on the dollar for thirteen years, that the addition of Awe years making a total of eighteen years is retroactive, and that the said amendment of section 4812, when applied to the road in question, is in conflict with section 28 of article 2 of the constitution, Avliich provides that, “The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts.” '

In Bowles v. State, 37 Ohio St., 35, this court held, and we think correctly, that the leAry under this one mile assessment law is a tax and not an assessment. Being a tax the general assembly derives its powers to levy the same from section one of article two of the constitution, which vests all legislative power in the general assembly. The power of taxation so vested in the general assembly is supreme except as limited by other provisions of the constitution, and the provision against the passage of retroactive larvs, and laws impairing the obligation of contracts, is, in a proper case, a limitation upon the taxing power.

Does the case at bar fall within that limitation? On the one hand it may be urged with much force that the property owners in this special tax district by their petition for the road set the machinery provided by the statute in motion, and caused the road to be constructed; that they retain the road and its benefits, and that they should pay the cost of the same upon the well recognized principle that statutes imposing taxes to pay a pre-existing debt are generally not retroactive. Holtz v. Commissioners, 41 Ohio St., 423; State v. Cincinnati, 52 Ohio St., 452; Cooley on Taxation, 291. And it might further be urged that section one of article two of the constitution giving the general assembly the power of taxation must be read into this one mile assessment law, and that the limitation therein to ten mills and thirteen years is subject to .the power of the general assembly to change the same as well as other parts of the statute, and that while the county officers are restricted to the ten mills and thirteen years limitation, there is no restriction or limitation on the power of the general assembly to authorize sufficient taxation to pay the debt incurred in the construction of the road; and further that the bondholders should receive their money.

While these considerations have much force, we have concluded that they are insufficient to sustain the taxation in question. While it is true that section One of article two of the constitution must be read into the statute in question, it is equally true that it must be so read into the statute with the limitation against the passage of retroactive laws attached thereto. So that after all the question turns upon the force and effect to be given to that provision of the constitution which says: “The general assembly shall have no power to pass retroactive laws.” Article 2, section 28. This provision is in the nature of an estoppel. The general assembly having the power to enact laws, and on the one hand having failed to do so, and permitted persons to conduct their affairs with reference thereto, or on the other, having enacted laws with certain limitations, and persons having conformed their conduct and affairs to such state of the law, the general assembly is prohibited, estopped, from passing new laws to reach back and create new burdens, new duties, new obligations, or new- liabilities not existing at the time.

Under the statute in question the general assembly enacted that an extra tax of ten mills and no ■more, should be levied for a period of thirteen years and no longer, and with that limitation in the statute the property owners petitioned, and set the machinery in motion for the double purpose of having the road constructed and paying the cost thereof, within the limitation provided in the statute. They relied upon that limitation so provided by the general assembly, and they were justified in so doing, because while the general assembly grants powers to the people, it limits the manner in which those powers shall be exercised, and such limitations are of as much force as the powers themselves. While everyone is liable to pay the general taxes to carry on the government, there is no such general liability to pay extra taxes, but such extra taxes can only be imposed in accordance with the particular statute authorizing them. The statute in question authorized a levy of ten mills each year for thirteen years and no longer, and to now impose this extra tax for a period of five years beyond the thirteen, is imposing an additional burden upon the property owners in this taxing district, not assumed by them when they signed and presented their petition for the road, and which the general assembly assured them by the limitation in the statute, should never be imposed. This assurance the constitution required the general assembly to make good, and it therefore had no power to add this extension of five years to the thirteen as to the road in question, and the extra taxes imposed under that extension are unauthorized and void, and should be enjoined. The principle is the same as was held in Cincinnati v. Seasongood, 46 Ohio St., 296, to the effect that in street assessments, the statute in force at the time'the improvement ordinance was passed, must govern.

This case is different from a case where the cost of a public improvement exceeds the fund provided by the statute, thus leaving an outstanding indebtedness, the statute having no limitation as to amount or time. In such cases the general assembly has power to levy a tax to pay such indebtedness. Holtz v. Commissioners, 41 Ohio St., 422.

But it is urged that the act of April 2, 1859, entitled “An act for the relief of the holders of orders issued by free turnpike road companies,” 56 O. L., 121, and carried into the Revised Statutes as sections 4814 and 4815, authorizes the levy of the tax in question. Those sections at the time this road was constructed read as follows:

“4814. When the right of any free turnpike road, company to levy special taxes to pay the orders issued by it has ceased, leaving outstanding orders unpaid, and their payment unprovided for, the commissioners of such road company shall immediate!v make out and deliver to the auditor of the county in which such road or any part thereof is situate, a complete and perfect list of all such outstanding orders, for the payment of which they have no funds or means of payment, with a description of each order, as to date, amount, rate of interest, if any, and when payable, which shall be verified by said commissioners, and the county auditor shall lay the same before the county commissioners at their next regular session thereafter.”
“4815. At any regular session of the county commissioners at which such list is laid before them, they shall immediately proceed to ascertain the aggregate amount of such orders, including interest, in case they draw interest, and adding thereto .an amount sufficient to pay the expenses of assessment and collection, and to cause the same to be assessed upon the same lands and lots as were subject to taxation for the construction of the road, or to pay for the same, at the time when the right to tax such lands and lots ceased, according to their true value in money, as shown by their valuation contained in the county duplicate.”

The “free turnpike road company” spoken of in said section 4814, is the “corporation” mentioned in section nine of the act of March 12,1845, entitled “An act to provide for laying out and establishing free turnpike roads,” 43 O. L., 106, Swan’s Revised Statutes, 822; Curwen Revised Statutes, Chapter 605, page 1163; Curwen’s laws, Chapter 316, page 764, S. & C. 1321, and carried into the various subsequent pike statutes, until it is now the “body corporate” as provided in section 4795, Revised Statutes. It seems clear that these sections are not applicable to the road in question. In the construction of free turnpikes under the said act of 1845, in aid of which said act of April 2,1859, was passed, no bonds were issued, but as the work progressed orders were issued on the fund raised by said extra taxation. The statute could apply to any particular road for a period not exceed - ing ten. years, and it often occurred that orders were outstanding at the end of the ten years and no fund to pay them, and the act of 1859 was passed to create a fund for the payment of such orders. It will be noticed that sections 4814 and 4815 authorize the levy of an assessment only for the payment of “orders;” nothing is provided for the payment of debts or bonds. To remedy this defect the general assembly amended the sections February 28, 1886, after this road was constructed, so as to make provision for the payment of “orders, bonds or other indebtedness,” so that the general assembly has construed those sections as they stood when this road was constructed, as providing only for the payment of “orders.” That such was the intention is still more clearly shown by the fact that section two of the act of March 27,1857, 54 O. L., 42, was repealed and not re-enacted in the Revised Statutes. That section is as follows:

“Section 2. That whenever the commissioners on any free turnpike road shall have incurred a debt in the construction of the same, a part of which debt remains, or would remain, unpaid at the expiration of the charter for said road, the county commissioners may, if they are satisfied the road commissioners have acted honestly and in good faith in their expenditures on said road, continue or cause to be continued, such special taxes as were by the original act, or acts amendatory, authorized to be assessed for the construction of said road, until said indebtedness shall have been paid.”

The “charter for said road” spoken of in the section was the ten years during which special taxes. might be levied for the free turnpike, and as the limit was afterward extended to thirteen years under the one mile pike law, the charter would end at the close of that period, and if the general assembly had intended that the special taxes should be continued until all indebtedness should be paid, it would have carried the substance of this section into the Revised Statutes. There is another and perhaps stronger reason why these sections cannot apply to the road in question. The one mile pike statute, section 4786, requires the extra taxes to be levied on the real and personal property within the taxing district, and it is only by thus preserving the equality of taxation that the statute conforms to section two of article twelve of the constitution. Bowles v. State, 37 Ohio St., 35. So that funds to be raised by extra taxation for the payment of the outstanding indebtedness must be by equal taxation on all of the real and personal property in the extra taxing district. But section 4815 does not authorize an extra tax on the personal property in the district, but only on the “lands and lots.” And as there must be equality of taxation on all the property, personal as well as real, and as the personal cannot be taxed, it follows that the real estate cannot be taxed. The doctrine of assessments cannot be applied, because assessments are only according to benefits, and this section requires that the amount be assessed upon the lands and lots, and no provision is made for the ascertaining of. benefits; and moreover assessments according to benefits cannot be made on personal property. To apply section 4815 to the road in question would therefore render it unconstitutional.

The purchasers of bonds- were bound by the limitations in the statutes, the same as if incorporated into the bonds, and were bound to take notice of the extent of the taxing district, and of the value of the property therein, and with those facts before them, they acted at their peril in so far as the property owners in this special taxing district are concerned; and if they made a mistake as to those facts, the loss should fall upon them, rather' than upon the property owners who have paid taxes up to the full limit of the statute. The bonds should be paid, if possible within the provisions of the constitution, but the question as to the manner of raising a fund for that ^purpose is for the general assembly, and not for this court.

The motion to strike out the amendment to the petition raised the question of its sufficiency, and was in effect a demurrer, and it was error to sustain the motion because the amendment showed that bonds had been issued and sold, and aided in showing that sections 4814 and 4815 were not applicable to the case.

We therefore hold that sections 4814 and 4815 are not applicable to the case at bar, and that section 4812 extending the time for five years beyond the thirteen, is retroactive when applied to this case, and that the tax complained of in the petition is not warranted by any law, and should be enjoined. It was error- to sustain the demurrer to the petition, and error to render judgment against the plaintiffs, and error for the circuit court to affirm the judgment.

Judgment reversed.

Shauók, O. J., and Minshall, Williams, Speak, and Davis, JJ., concur.


author: Burket, J.

text:
    Randall et al. v. The State of Ohio ex rel. Hunter et al.

      Decision of state supervisor of election as to matters submitted to Mm by deputy supervisors is final — Error for court to order depxity to perform act contrary to decision of state supervisor — Attempt to compel deputy to print names of candidates on ballot by mandamus — State supervisor not proper party — Deputy state superviors not a board or corporate body — Legal status of deputy.

    1. The decision of the state supervisor of elections as to matters in controversy submitted to him by the deputy state supervisors, is final. It is the duty of such deputy state supervisors to obey such decision of the state supervisor of elections; and it is error for a court, by mandamus or otherwise, to order such deputy state supervisors to perform an act contrary to such decision of the state supervisor of elections.
    2. In a proceeding in mandamus to compel the deputy state supervisors to print names of candidates for office upon the official ballot, the state supervisor is not a proper party. And such action cannot be maintained to compel the performance of an act contrary to the decision of the state supervisor in the premises.
    3. The deputy state supervisors are not constituted a board, or corporate body by the statute, but each one acts simply as a deputy state supervisor, and in case of litigation the action should be against him in that capacity, and he may prosecute error, even though the others refuse to join with him.
    (Decided January 22, 1901.)
    Error to the circuit court of Warren county.
    The action below was commenced on the 26th day of October, 1900, in the circuit court by the state of Ohio on the relation of Lon Hunter against the board of deputy state supervisors of elections for Warren county, Ohio, and Thomas C. Christie, G-eorge W. Snook, Charles W. Randall, and Charles IT. Eulass as deputy state supervisors of elections for said county of Warren, and Ed. S. Conklin as clerk of said board of deputy state supervisors of elections, defendants.
    The petition, omitting the caption, signatures and exhibits, is as follows:
    “On the 2nd day of June, A. D., 1900, the relator was duly nominated by a convention of electors representing the Democratic party of Warren county, Ohio, for the office of sheriff of said county of Warren, Ohio, and one L. R. Robertson was nominated for the office of clerk of courts of said county of Warren, Ohio, and one John W. Scull, Jr., was nominated for the office of infirmary director of said county of Warren, Ohio, to be voted for at the general election to be held on the 6th day of November, 1900.
    “The plaintiff and said L. R. Roberston and- John W. Scull, Jr., are residents and electors of Warren county, Ohio; and the Democratice party of the state of Ohio at the last preceding general election polled more than one per cent, of the entire vote cast in said state.
    “At said convention the Democratic executive committee of said county, to-wit: W. W. Crane, Howard W. Ivins, Henry Reid, George W. Jack, M. V. Baldwin, Adam Bridge, and J. M. Earnhart were appointed a committee to represent said party, and duly authorized to fill vacancies in the ticket nominated by said convention.
    “At said convention J. M. Earnhart was duly elected and acted as chairman of said convention, and Mary Proctor Wilson was duly elected and acted as the assistant secretary of the convention. On the 18th day of October, A. D., 1900, the said J. M. Earn-hart as said chairman of said convention, and said Mary Proctor Wilson as assistant secretary of said convention, made a certificate as required. by law showing and certifying that said plaintiff and said L. B. Robertson and John W. Scull, Jr. had been duly nominated by said convention for the respective offices hereinbefore stated and that the persons hereinbefore named were authorized to represent said Democratic party in said county; wrhich said certi-' ficate ‘was duly verified by said J. M. Earnhart and Mary Proctor Wilson according to law-; and said certificate was filed with said E. S. Conklin, the clerk of said board of deputy supervisors of elections for said county on the 18th day of October, 1900, at the hour of 1:45 o’clock P. M., of said day. A true copy of said certificate is hereto attached and filed herewith and is made a part hereof, marked ‘Exhibit A.’
    “On the 19th day of October, 1900, at 9:15 o’clock, A. M., W. W. Crane as chairman and Howard W. Ivins as secretary of the Democratic executive committee filed with said E. S. Conklin, the clerk of said board of deputy supervisors of elections for said county, a certificate as required by law" in order to correct any insufficiency, imperfection or defect in said certificate herein before set out and to fill any vacancies that may have been caused by any such insufficiency, imperfection or defect in said certificate and the executive committee of the Democratic party of Warren county, O., made therein the following noihinations: Lon Hunter, Lebanon, O., sheriff; L. R. Robertson, South Lebanon, O., clerk of courts; John W. Scull, Jr., Mason, O., infirmary director. A true copy of said certificate is hereto attached and filed herewith and is made a part hereof, marked ‘Exhibit B.’
    “On the said 19th day of October, 1900, and at 10:04 A. M., an objection to the first and second certificates herein before set out was filed with E. S. Conklin, the clerk of said board of deputy supervisors of elections for said county. The only objection made being that said certificate was not filed not less than twenty days previous to the 6th day of November, 1900, the day of election. A true copy of said certificate is hereto attached and filed herewith and is made a part hereof, marked ‘Exhibit C.’
    “Said board of deputy supervisors of said county of Warren met October 20th, 1900, and on motion that the names on said Democratic ticket be printed on the official ballot, the votes of the board stood yeas two and nays two. On motion the proceedings of the board, together with all papers, were referred to the secretary of state. A true copy of said proceedings of said board is hereto attached and filed herewith and made a part hereof, marked ‘Exhibit D.’
    “On consideration the secretary of state held that the time provision of the statute for filing certificates is mandatory and that the certificate filed on the 18th day of October, 1900, as hereinbefore set forth was null and void and could not be corrected by a supplemental certificate, and directed said board of deputy supervisors of elections for Warren county, Ohio, that said ticket should, not be placed on the official ballot. A copy of the holding of the secretary of state is hereto attached and filed hemvith and is made a part hereof, marked ‘Exhibit E.’
    “The official ballot of Warren county has not been printed and- there is yet ample time to place said Democratic ticket on the official ballot and to have the same printed, but the said board of deputy supervisors refuses to permit the same to be done.
    “Wherefore the plaintiff prays that a writ of mandamus issue from this court commanding the defendants, the board of deputy state supervisors of elections for Warren county, Ohio, to have the said Democratic ticket so as aforesaid nominated and certified to said board printed on the official ballot for said county for the next ensuing election on November 6, 1900, and for all other and proper relief.”
    To this petition the defendants filed the following demurrer:
    “Now come the said defendants and demur to the ' petition of said relator for the following reasons, to-wit:
    “1. The defendants are not proper parties to this suit, but the state supervisor of elections, Hon. Charles Kinney, is the proper party defendant to this suit.
    “2. Said court has no jurisdiction of the subject-matter of said action.
    “3. 'Said petition does not state facts sufficient to Avarrant the relief prayed for by relator.”
    The circuit court overruled the demurrer, to which exceptions Avere taken. The defendants not desiring to plead further, the court awarded a peremptory mandamus, at costs of defendants below, to which exceptions were taken. Thereupon a petition in error was filed in this court to reverse the judgment of the circuit court.

      F. M. Cunningham; Frank Brandon and George A. Burr, for plaintiff in error.
    1. The state supervisor of elections was a necessary party to the petition in the circuit court. Under the provisions of sections 2966-1 and following sections of the Revised Statutes of Ohio, the state supervisors of elections is vested with paramount authority over the election officers and elections in Ohio. The members of the board of deputy state supervisors are appointed by him and may be removed by him. Section 2966-3, Revised Statutes; and they are therefore merely his agents in carrying out the powers and authority vested by law in the state supervisor. They were then engaged in carrying out his express order and command when the circuit court intervened and assumed to exercise authority which we maintain the law has vested in the state supervisor of elections alone. The deputy state supervisor .of elections has plenary power over the appointment and removal of the deputy state supervisors of elections throughout the state, the preparation of the official ballot and the - general conduct of the entire election. Therefore this case was prosecuted against the mere agents of the state supervisor of elections instead of the principal, the state supervisor of elections; and therefore there is a defect of parties defendant to the original petition.
    2. Neither certificate of nomination was filed “not less than twenty days previous to the day of election” as required by section 2966-22, Revised Statutes. It is conceded by counsel for the Democrats that the original certificate was not filed in time; and therefore it is a nullity.
    The statute is mandatory — “Certificates of nomination and nomination papers for the nomination of candidates for county officers shall be filed with the deputy state supervisors not less than twenty days previous to the day of election.” State v. Taylor, 55 Ohio St., 385.
    It is plain, therefore, that the certificate filed on the 18th day of October is absolutely a nullity and no nominations can be based upon it. Now can the Democrats bring themselves within the saving of section 2966-24, Revised Statutes? It is manifest that they cannot. That section applies only in cases Avhere the original certificate, filed in due time, is defective or imperfect, by reason of the causes set forth therein.
    The names on these certificates were not entitled to be printed on the official ballot; because only such names shall be printed thereon as have been duly nominated according to the provisions of these sections. Section 2966-32, Revised Statutes.
    3. The decision of the state supervisor of elections on the matter in dispute was final, and the circuit court had no jurisdiction of the subject matter of the petition. Section 2966-23, Revised Statutes. Chapman v. Miller, 52 Ohio St., 166; Commissioners v. Johnson, 21 Fla., 577.

      W. C. Thompson; W. F. Eltsroth; John E. Smith and S. W. Probasco, for defendants.
    First. Was the secretary of state a necessary party to the action, without whose presence in court a writ of mandamus could not issue?
    We say not, because he has no duty to perform in reference to the printing of the ballots for election of county officers. In fact, he has nothing to do except to determine such questions in their jurisdiction as they cannot decide. Sections 2926-22, 23, 24, 26, 27, 28, 29, 30 and 31.
    Second. Was the action of the secretary of state final, so as to deprive a court of general jurisdiction of jurisdiction to determine the legality of his action?
    We hold not, because he has jurisdiction to determine only questions of fact, and those only as to whether there has a question been raised by objection. Revised Statutes, 2966-23. State ex rel Fulton v. State, Sup’rs, 9 C. D., 427; 17 C. C., 396.

      There is no question of fact in the case, and there is no question as to the certificate, in form or otherwise.
    It is simply a matter of the application of the law to the facts as they exist.
    The fact that an objection was filed on account of the time of filing the certificate devolves upon the board or the secretary of state, no duty of determining any contest. It is their duty, under the law, to apply the law to the facts as they exist undisputed, even without any objection being filed with them. This duty is executive, and not judicial, and their acts cannot be final.
    Third. Is the provision of the statute as to the time when the certificate is to be filed mandatory ?
    We answer no.
   Burket, J.

Jurisdiction in mandamus is conferred upon the circuit court by section 6 of article 4 of the constitution, and that jurisdiction cannot be abridged or taken away by the general assembly.

Section 6741, .Revised Statutes, is as follows: “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 specially enjoins as a duty resulting from an office, trust, or station.”

The law as to mandamus at the time the constitution was adopted, was not broader than this section of our present statutes, and therefore we need not look further than to properly construe this section.

Section 6 of the Australian ballot law, 89 O. L., 434, provides that, “nominations to be valid must be certified as hereinafter provided.” Section 9 of the same law, 93 O. L., 189, provides that, “certificates of nomination and nomination papers for the nomination of candidates for county offices shall be filed with the deputy state supervisors not less than twenty days previous to the day of election.” Section 10 of the same law, 90 O. L., 269, provides that, “the certificates of nomination and nomination papers being so filed, if in apparent conformity with the provisions of this act, shall be deemed to be valid, unless objection thereto is duly made in writing, within five days after the filing thereof. * * * Such objections or other questions arising in the course of nominations of candidates for county offices * * * shall be considered by the deputy state supervisors of the county, * * * and their decision shall be final; but in case no decision can be arrived at, the matter in controversy shall be submitted to the state supervisor of elections, who shall summarily decide the question thus submitted to him, and his decision shall be final.”

In the case at bar objections to the certificates were filed within five days, and the deputy state supervisors of the county considered the same and failed to arrive at any decision, and they submitted the matter in controversy to the state supervisor of elections, and he decided that the certificates were filed too late, and that the names of the candidates should not be placed on the official ballot, and directed that they be omitted. As the statute provides that his decision shall be final, the decision so made by him became the law of the case, and absolved the deputy state supervisors from the duty of placing the names on the ballot, and after that decision the performance of the act of placing the names on the ballot was not enjoined by law “as a duty resulting from an office, trust or station.”

The duty of the deputy state supervisors after that decision was to omit the names from the ballot, and it was error to order them by a writ of mandamus to perform an act which it was their duty under the statute not to perform.

The controlling principle — the finality of the decision of the state supervisor of elections — is the same in this case as in Chapman v. Miller, 52 Ohio St., 166. While the general assembly cannot curtail the jurisdiction of the circuit court in mandamus, it can so enact the law as to remove the duty to do any particular act, and when the duty no longer exists, the power of the court to command the performance of such supposed duty is gone.

As the decision of the state supervisor is final, the correctness of such decision cannot be reviewed or considered by a court, and therefore he is not a proper party to a proceeding to compel the deputy state supervisors, by mandamus or otherwise, to disregard such decision, or act contrary thereto. A court has no authority to compel such contrary action by the deputy state supervisors, nor to compel the state supervisor to change or modify his decision. He makes his decision to the best of his judgment and discretion, and such discretion cannot be controlled by a court. Section 6712, Revised Statutes.

The deputy state supervisors are not constituted a “board of deputy state supervisors” or corporate body by statute, and there is no provision for designating or suing them as such. The statute provides simply for the appointment of “deputy state supervisors,” and- they are known by that designation throughout the statute, and each one acts as such, and if sued, should be sued as such, and can prosecute error as such even though the others refuse to join in such error proceedings. In case of such refusal they should be made defendants. ,

The judgment of the circuit court will be reversed, the demurrer sustained, and the petition dismissed.

Judfjment accordingly.

Shauck, C. J., and Minshall, Williams, Spear and Davis, JJ., concurred.