
    OFFICES AND OFFICERS — TAXES.
    [Cuyahoga (8th) Circuit Court,
    March 28, 1905.]
    Marvin, Winch and Henry, JJ.
    H. M. Brooks et al. v. M. A. Lander, Treas. of Cuyahoga Co. et al.
    Auditor may Expunge Changes in Duplicate Made by Unconstitutional Board to Correct Errors in Current Duplicate.
    Acts of de facto officers under a law held unconstitutional by the Supreme Court can have no prospective operation, especially where the de facto officers as such cannot be identified with any pre-existing officers, and the only vitalizing power given the officers was that by the unconstitutional act creating the office. Hence, the Supreme Court having held act 89 O. L. 283, creating a board of equalization and assessment invalid and ousted the board, the action of the board making deductions upon the duplicate may be corrected as an error and expunged by the auditor upon the current duplicate.
    [¿roof of this decision was submitted to Judge Henry and corrected. — Ed.]
    Appeal from common pleas court.
    
      W. W. Boynton and Smith & Taft, for plaintiffs.
    
      G. W. Stage and Z. T. Armstrong, for defendants.
   HENRY, J.

This cause is here on appeal, having been commenced in the Cuyahoga common pleas court to enjoin the collection of certain taxes. After the board of equalization and assessment in the city of Cleveland was held, in State v. Molyneaux, 58 Ohio St. 736, and Gaylord v. Hubbard, 56 Ohio St. 25 [46 N. E. Rep. 66], to have been acting under an unconstitutional law, the county auditor expunged from the duplicate certain deductions from the taxable values of real estate made pursuant to the orders of said board. The persons affected now seek to have those deductions restored.

If the deductions, which the auditor thus corrected or expunged, can be regarded as mistakes, in the sense of being erroneous and void, they were in our opinion such mistakes as under R. S. 1038 (Gen. Code 2588), as construed in State v. Raine, 47 Ohio St. 448 [25 N. E. Rep. 54], he was entitled so> to correct. It is, however, contended by the plaintiff that those deductions were not erroneous, but valid, as having been regularly made by de facto officers in the exercise of powers which they were presumed to possess under color of then unchallenged law. It is pointed out that this court has refused to undo the acts of that board so far as their operation and effect are concerned prior to the decision in State v. Mo'lyneaux, supra. And the present case proceecls upon the theory that a like rule may be invoked with respect to the prospective operation of the same acts.

No case has been cited to us, and we know of none which thus applies the doctrine of de facto officers to the prospective operation of acts performed by the incumbents of merely de facto offices. It is claimed, however, that this was not merely a do facto office, but that it falls rather withiu the principle of Kirker v. Cincinnati, 48 Ohio St. 507 [27 N. E. Rep. 898.]. That was a case where one board was supplanted by another-having the same powers. The decision turned on this identity of powers. In the ease at bar the board was attempted to be clothed with powers substantially different from those conferred by the general statute. It was .expressly so held in Gaylord v. Hubbard, supra.

It is claimed, however, that the powers here exercised were not those which differentiated this act from the general statute but were in fact those authorized by general law. This claim does not, in our opinion, serve to bring this or any other action of this board within the rule of Kirker v. Cincinnati, supra. The fact remains that this bo-ard can not be so identified with any pre-existing board as to validate the prospective operation of its acts. 'Whatever vitalizing power the law which created the board may have given it with respect to the operation of its acts within its lifetime, it is certain that such power ceased when the board was ousted. Thenceforward its acts and its existence must be treated as wholly void so far, at least, as any prospective effects thereof are concerned.

' In the case of State v. Akins, decided May 12, 1899, not reported, this court did indeed determine that taxes paid without protest on additions made by this board while its statute was yet unchallenged could not be recovered back, and that it was not a mere clerical error for the auditor to omit to declare this statute unconstitutional and void and to disregard the •orders of the board under it. The error was a fundamental ■one and not to be reached by mandamus against the auditor. "With that decision we are still content. But we 'now hold that the decision of the Supreme Court, ousting the board, authorized the auditor thenceforward to treat as clerical errors the changes which had been made in the tax duplicate pursuant to, the board’s orders, and to correct them accordingly in the current duplicate. The. petition is therefore dismissed.

Marvin and Winch, JJ., concur.  