
    TAXATION — CONSTITUTIONAL LAW.
    [Lucas Circuit Court,
    March 3, 1900.]
    Haynes, Parker and Hull, JJ.
    
       Joseph L. Yost, Treas., v. Maumee Brewery Co.
    1. Taxation — Time Within Which Omitted Taxes May Be Entered.
    Under Sec. 2803, Rev. Stat., providing that when the county auditor shall discover that any assessor has omitted to return any lands, improvements, structures, etc., subject to taxation, or if any such property has escaped taxation by reason of any error of said auditor, it shall be his duty to ascertain the value thereof and to enter the omitted property upon the tax duplicate, then in the hands of the county treasurer of such county, such auditor is to have the opportunity of placing such discovered omission upon the duplicate at any time during which the duplicate is in the hands of the treasurer, for the collection of taxes of the year in which the discovery is made.
    2. Same — Purchaser Takes Subject to Liability.
    A person buying property takes upon himself the liability to have the property assessed for the taxes of the year of the purchase, or if the property has already been assessed, and if errors or omissions are found to exist therein, to have amendments made thereto for that year.
    3. Tax Limitation Appeicabee to Lucas County — Constitutionae.
    Section 2823 Rev. Stat., relating to tax levies, and providing, among other provisions applicable according to the amount of taxable property in a county, that “ in a county where the amount of such taxable property does not exceed three million dollars ” the tax shall not exceed five mills, though applicable, so far as that provision is concerned, only to Lucas county, is not unconstitutional on the ground that it is not of general and universal application throughout the state.
    4. Lucas County Stone Road Law Constitutionae.
    Section 4836a, Rev. Stat., the stone road law applicable to Lucas county, although different from that of any other county in the state, is not unconstitutional, and was so held by this court in Taylor v. Lucas Co., unreported, which decision was affirmed by the Supreme without report.
    Appeal from the Court of Common Pleas of Lucas County.
    
      
       Affirmed by Supreme Court with out . i > ' !. j! (i, ti Clie St.
    
   Haynes, J.

A petition was filed by Joseph L. Yost, treasurer, for the enforcement of certain taxes against lot 224, Port Lawrence division of the city of Toldeo, amounting in all to $3,221.88.

An answer and cross-petition was filed by the brewery company, in which it set up a variety of reasons why the plaintiff should not have judgment for that amount of taxes and setting up that a very large proportion of these taxes are illegal.

Some of these defenses are admitted to be good defenses, by the plaintiff, and as to others the facts are denied; and, where the facts are not denied, the legal conclusions which are claimed by the plaintiff are denied.

The case is an important one, and in the condition in which the statutes are, in connection, perhaps, with the method of doing business, it is difficult to arrive at any very correct conclusion in regard to the matter. We have spent a considerable ol time on the discussion of the question and have arrived at certain conclusions; but at the same time, the case is one of such importance that it ought to go to the Supreme Court, and probably will go there, and perhaps it would be sufficient to simply announce our judgment. However, it may be due to counsel to state, very briefly, the conclusions at which we have arrived on some of the leading questions involved.

The principal question arises from the state of facts which is set up in the reply; and I will read what is there, very briefly:

“Further replying to the matter in the fourth paragraph of defend-' ant’s cross-petition contained, this defendant says that a new building' was erected and built upon, said lot 224 on the day- preceding the second Monday in April, 1898, and that said assessor failed to return said building for taxation to the auditor of Tucas county, Ohio.’’

That is, for that year.

“That on the first day of August, 1898, the board of equalization, after giving due notice to the Maumee Brewing Company, the then owners of said lot, passed a resolution increasing the valuation of said lot by adding $40,000 thereto on account of the addition of said building, of which due notice was given to the said Maumee Brewing Company ,' and that said board of equalization, in their resolution did not describe the lot, but added the valuation to the Maumee Brewing Company on account of said building.
“That thereafter, but prior to the 8th day of September, 1898, the county auditor entered the name of the Maumee Brewing Company in a book which he keeps lor the purpose of entering added buildings and opposite the said name, entered the words, ‘Lots 225 and 226, Port Lawrence division, together with a notation of said addition of $40,000 on account of said building.
“That afterwards, about the 1st day of October, 1898, said auditor entered said lots 225 and 226 in Port Lawrence Division of Toledo, Lucas county, Ohio, upon the tax duplicate of 1898, with the added valuation and at the same time entered the said lot 224 upon said duplicate at the old valuation of $2,400.
“That in the month of January, 1899, the said auditor for the first time discovered that an error had been made in entering said increased valuation against said lots 225 and 226 and thereupon proceeded to make the correction by reducing the said valuation upon said lots 225 and 226 and adding the amount to lot 224, where it properly belonged”

The brewing company was organized and received a deed for this property. It says in paragraph five:

“Defendant further says that by a deed duly executed on the third day ot September, 1898, and filed for record on the eighth day of September, 1898, said lot 224 was conveyed to this defendant, who then and not before became the owner thereof.”

‘It is claimed that the auditor had no authority to enter this $40,000 pon the tax duplicate after September 3, 1898, for the reason that this ■property bad been transferred at tbat time, as stated in the answer to the defendant, the brewery company; and it is under sec. 2808, Rev. •Stat.,.and upon the proper construction of that statute under the facts ■of the case, that the difficulties arise in this case.

"In all cases where any county auditor shall discover, or have his -attention called to the fact, that any assessor in any previous year shall have omitted to return, or shall in any luture year omit to return any lands, town lots, or any improvements, structures or fixtures there, subject to taxation, situated within his county.

You will observe the statement that it the auditor shall discover, or -have his attention called to the fact that any assessor in any previous year shall have omitted to return — which is very easy to be done, if he •discovers it; but it proceeds to say “or shall in any future year omit to return any lands,” etc., “subject to taxation.” I suppose the legislature in that act had in mind that if he discovered anything that was prior to the time that he made the discovery, or that if in any year there•after he made the discovery of any such omission.

Then the statute provides: “Or it any such property has escaped taxation by reason of any error of said auditor, it shall be the duty of :said auditor to ascertain the value thereof for taxation as near as may be, and to enter said lands, town lots or improvements, upon the duplicate of the county then in the hands ot the county treasurer of such county.”

Now, that seems to be plain sailing; when he discovers this he is to enter it upon the duplicate of the county in the hands of the treasurer •of such county; but the statute further says: “and to add to the taxes of the current year the simple taxes of each and every preceding year in which such property shall have escaped taxation, as far back as the next preceding decennial appraisement and equalization of real estate in his county, unless in the meantime such property shall have changed ownership, in which case only the taxes chargeable since the last change «1 ownership shall be added, or the owner of such property may, if he desires, pay the amount of such taxes into the county treasury, on the ■order oi said auditor.”

Now, it seems to us that the reading of that statute is this; if, Upon any year the auditor discovers that in that year there has been an omission, on account of improvements, from the duplicate, that he may add that improvement upon the duplicate. That is the plain reading of the' statute. “It shall be the duty of said auditor to ascertain the value thereof, for taxation as near as may be, and to enter said, lands, town lots or improvements, upon the duplicate of the county. ” In that state •of facts we can see that the amount goes upon the duplicate and is taxed for the current taxes of that year.

But there is another condition that may arise: and that is that this omission had occurred two or three years before and that therefore there had been back taxes, or the taxes of prior years which had not been paid, or had not been assessed, which ought to have been assessed upon the property; and thereupon the statute provides that he shall have authority to add to the taxes of the current year. Now that addition is the addition of the back taxes to the current taxes — “to add to ¿he taxes of the current year the simple taxes of each and every preceding year;” that is, taxes without penalty, as we understand, “in which such property shall have escaped taxation, as far back as the .next preceding decennial appraisement and equalization of real estate in his county, unless in the meantime such property shall have changed ownership, in which case only the taxes chargeable since the last change oí ownership shall be added.” Added to what? Added to the current taxes ot the current year upon the property.

We have read all the authorities which have been cited and have spent a great deal oi time in the discussion of this question, and we confess that there are a great many doubts and uncertainties about it, but it seems to us that the better opinion is, and the more proper construction, to hold that when the auditor discovered that this assessment on this property and improvement had not been made by the assessor of that year, that he then should have placed the same upon the duplicate and added the taxes. He made that discovery in the summer and attempted in October of that year to cure it, or to correct the omission, but by another mistake of some one in the office, the amount was placed upon the property ot a neighbor and not upon this property. The statute provides that “it shall be the duty of said auditor to ascertain the value thereof for taxation, as near as may' be, and to enter said lands, town lots or improvements, upon the duplicate of the county, then in the hands of the county treasurer of such county.” The question has arisen as to how long and during what time this entry may be made upon this duplicate. And there comes up the question of taxss ot the current year to which it is said the addition may be made. It has been suggested that the year would extend from April to April, the time when the taxes become a lien upon the real estate. It has been discussed between us whether or not it is intended to mean the current year of our Ford; but the statute seems to make provision tor making this correction upon the duplicate in the hands of the county treasurer. Originally, as we all know, the taxes in this part of the country for any particular year were, as they are now, levied some time about the first of June, I think in some cases the provision is that the levy shall be made at that time, by the county commissioners, also returned to the commissioners by that time by other officers who are authorized to make the levy. That levy having been made the property is placed upon the duplicate, and the proper levy of the taxes upon each lot is made. The duplicate is to be placed in the hands of the treasurer by October 20, and the taxes were collectible and payable on or before December 20, following, making the whole business come within the year. So far as this county is concerned, the duplicate gets into the hands ot the officer by November 1. The general statute provides that a party may have a choice, and instead of paying his whole tax on or before December 20, may have until the June following to pay one-half, and provision is made for the return of the duplicate on or before January 20, to the auditor and then the returning of it to the treasurer is on or before April 20, following, and giving the parties until June 20, following, in which to pay the taxes of the year for which the taxes were levied, one-half of them being collected really in the year following the principal levy of the taxes.

The object and, purpose of this statute is to put upon the duplicate the property ot a particular year — to put upon the duplicate the property which the auditor discovers has been omitted tor that year, and we think thevtrue construction should be that he should have an opportunity of placing it upon the duplicate at any time during the time in which the duplicate is in the hands of the tresurer for the collection of the taxes of that year, and without reference to whether it is the first of April or whether it is for the year according to the ordinary computation of time; and we think, therefore, that this auditor had the authority to place this omission upon this lot 224 at any time during the time that the duplicate was in the hands of the treasurer for the collection of the taxes of 1898; and this he did; and there being no back taxes — the omission having occurred in 1898 — this whole clause with reference to back taxes and the transfer of property, etc., has no application: that is to say — a man who buys property in any particular year takes upon himself the liability to have the property assessed for the taxes of that year and to have amendments made in the same manner for that current year, if omissions or errors are found to exist.

In addition to the tax of which we have been speaking, there was levied in the county a tax for the purpose of paying, in some part, for stone roads, under what are called the stone road laws of this state; and there is a law in regard to stone road in this county which is different irom that of any other county in the state, and it is claimed that that provision of the statute is unconstitutional.

That question was before this court a good many years age in Taylor v. Lucas Co. (Comrs.) unreported, being case No. 225 of this court, and was heard and this court held that the law was constitutional; proceeding, as I remember it, upon the theory that the matter was rather of a local nature and therefore did not come within the prohibition of the constitution that laws of a general nature must have a uniform application in the state. The case was taken to the Supreme Court and the judgment of .this court was affirmed. It is said that it might have been affirmed upon some other question; as, for instance, that the tax being less than it would be under the other statutes, that therefore the plaintiff was benefited rather than injured by the statute and hence had no equity and therefore the petition should be dismissed. I hardly think the Supreme Court would pass upon the question in that form, and I do not think it ncessarily follows that they did pass upon it in that form; at any rate, the court affirmed the judgment and that question was in it, and we think we ought not to hold that that statute is unconstitutional.

There is another provision of the statute, found in sec. 2883, which provides lor the levying of taxes by the county commissioners for county purposes generally and largely. The statute is a very long one. It provides for limitation of the amount which the commissioners may annually levy, and where the appraised value of the taxable property does not exceed'three million dollars, the amount is limited to five mills, and where the amount exceeds three millions and does not exceed five millions of dollars, it is limited to three and five-tenths, and so on up to above seventy million dollars, and at some time in the history of this world the authorities at Columbus, perhaps upon the instigation of the commissioners of this county, or somebody perhaps interested in the welfare of Lucas county, made a provision that in Lucas county the sum to be levied be five mills; before it had been one and one-tenth mills, and since that time the taxes have increased. Now it is said that that amendment of that statute was unconstitutional and that for the reason that the subject of taxation is one of a general nature throughout the state and one that all parties are interested in and that any law that affects the subject of taxation should be a law of general and universal application throughout the state. We are not so clear about that. The statute provides here for a classification in all the counties, that is to sáy it is a classification by the amount of taxable property upon the duplicate. i

Charles E. Sumner, prosecuting attorney for plaintiff iu error,.

Swayne, Hayes & Tyler, for defendant in error.

The Supreme Court have held, in State v. Buckley, 60 Ohio St., 273, that classification in regard to counties does not properly exist; it i? only as to municipal corporations that they allow it. We have very serious doubt whether the contention of counsel which has been made in this case is true; that this particular portion of this act is unconstitutional. We think this court ought not to declare a law unconstitutional unless it most clearly appears tobe so or unless it has been adjudged to be so, either directly or indirectly, by the Supreme Court of the state of Ohio, and we think this question is a matter of very great importance; it is of very great importance to the county; and if it is unconstitutional it is very far reaching, and we feel that we ought not to declare the law unconstitutional with the present views we have in relation to it, and therefore, we shall hold that that act is constitutional until further instructed by the Supreme Court of the state.

These are the leading questions which are made m the case and we have given them a very careful examination without coming to as clear a conclusion in regard to them as we would like to come to in the discussion of a legal question, but judgment may be rendered in the case in accordance with'this decision.

The demurrer will be sustained and judgment entered upon the demurrer. That raises all the questions.  