Ludlow v. Willich

1 Cin. Sup. Ct. Rep. 315

• Court: Ohio Superior Court, Cincinnati
• Decided: April 15, 1871
• Status: Published

Opinions

Hagans, J.

The plaintiff seeks to enjoin the county auditor from the collection of taxes, alleged to be in arrear for a number of years, upon a tract of land now admitted to contain ninety-five acres. It has been appraised and listed for many years as a lot of twenty-five acres. It appears, from the testimony, that the grantor of the plaintiff owned the whole section, and sold off it, from time to time, several parcels until it was discovered that there was an excess in the section, which not unfrequently .occurs, and as soon as it was discovered, the excess still belonging to him was put on the duplicate for taxation by him, whereon the auditor assessed, and was about to collect, back taxes for some twenty years, and this proceeding was brought to restrain him from so doing. It appeared that both the plaintiff and his grantors acted in good faith; that the tract was always listed, assessed, and the taxes paid, and that it was described on the duplicate as containing twenty-five acres, though in fact, but without the knowledge of the owner, it contained ninety-five acres.

It is claimed that section 70 of the tax act (2 S. & C. 1463) furnishes the authority to the auditor for proceeding as he did. That section reads as follows: “ It is hereby made the duty of every person seized of, or holding lands * * * to list the same for taxation with the county auditor, on or before the third Monday of May next after the same shall be subject to taxation; and in ease of neglecting to list the same as aforesaid, the county auditor shall, when the same shall thereafter be listed, charge upon each tract so neglected to he listed the taxes for each year the same shall have been omitted after becoming liable for taxation, together with” a penalty and interest. Under this section the auditor proceeded arbitrarily, and, it seems to us, without any authority, to make up the amount of what he denominates back taxes, and charged it upon the land, and sought its collection. He certainly pursued no method pointed out by the statute for ascertaining the amount, but supposed that by the necessity of the case arising under this section 70, he had authority to ascertain the amount himself by going through the process of a supposed assessment and levy. This might be a dangerous exercise of power, though we know of no complaint on that ground in this case. He might assess back taxes anywhere and for any length of time at discretion. At all events, we think the exercise of such a power by the auditor unauthorized and illegal.

But was this a case for levying the back taxes under the circumstances of the ease ? The tract was listed, assessed, and the taxes paid. The description of the number of acres in the tract was simply a mistake, of which even the owner was unapprised until he himself reported it to the auditor as soon as discovered. That it had been up to that time omitted was the fault of the assessor of the district, upon whom, by section 29 of the tax law (2 S. & C. 1450), devolved the duty “ to make out and deliver to the auditor of the county a return, in tabular form, contained in a book to be furnished by such auditor, of the amount, description, and value of the real property subject to be listed for taxation in his district, which l’eturn shall contain,” among other things, “ the description of each tract, designating the number of acres,” etc. This was his sworn duty. The owner did not know of this excess. The same excess has happened in many of the sections, growing out of inaccuracies in the original surveys, and yet not until it was subdivided and accurately surveyed had the owner any knowledge on this subject. His tract was listed and assessed, and the number of acres was, in some respects, immaterial, except so far as it might enable the auditor to ascertain the value of different parcels when subdivided. How, then, can the provisions of section 70 apply to this case? The owner’s duty had been performed, and he did not neglect to list the excess for taxation, and it is only in that ease that back taxes are chargeable. It was rather an omission of duty upon the part of the officers of the law, the penalty of which is nowhere by the statute imposed upon the owner. It would, therefore, be wrong to allow these taxes to be assessed and collected in the manner sought. None of the other sections of the tax law seems, to a majority of the court, to have any application to this case, except section 70, and clearly this case is not within it, and we can not legislate it in.

The injunction must be made perpetual.