
    State on Application of Alter, v. Bader, et al., Commissioners.
    
      Taxation — Suit to enjoin 7inconstitutional act to improve road— Taxes voluntarily paid not misappropriated by treasurer.
    
    1. A suit by a tax-payer brought to enjoin the execution of an unconstitutional act for a local road improvement, is too late if no.t brought until after he has voluntarily paid all taxes assessed or to be assessed against him for that purpose.
    2. Nor will it be a mis-appropriation of moneys in the county treasury to devote the sum made up of the taxes so voluntarily paid by tax-payers of the county to the purpose for which they were so paid.
    (Decided June 22, 1897.)
    Error to the Circuit Court of Hamilton county.
    Suit was brought May 29, 1896, in the court of common pleas, by the plaintiff in error, it being alleged in the petition that the defendants, the commissioners of Hamilton county, and the other defendants, claiming to be trustees appointed under the pretended authority of an act entitled “An act to authorize the commissioners of Hamilton county to levy a tax for improving, grading and macadamizing Indian Hill avenue, in Columbia township, and for other purposes,” had already proceeded under said act to appropriate property for the widening of said avenue, and were about to enter into further contracts for said improvement and to carry out the provisions of said act; that said act is unconstitutional and void and that unless restrained, the defendants would enter into contracts for making such improvements, would issue bonds of the county to pay for the same and perform the other acts which said act assumed to authorize which would result in a mis-application of the funds of said county. It also alleged, that before the bringing of the suit, Alter had made application to the prosecuting attorney of the county to bring such suit, and that he had refused.
    The petition prayed for an injunction.
    The defendants, the county commissioners> answered, alleging- that they had levied a tax of two-tenths of a mill on the property of Hamilton county, one half of which was collected on the duplicate of the year 1894, and the other half on that of the year 1895, for the purpose of creating a fund to carry out the provisions of said act, and that the same was paid by the tax-payers of said county without objection or protest, and went into the county treasury to the credit of said fund; that they had by dedication and releases, acquired title to the right of way through certain. lands in said township, and that compensation for other lands necessary for that purpose, had been fixed in appropriation proceedings, but never paid. The answer denied all other allegations of the petition.
    In the court of common pleas, a demurrer to this answer was sustained and the defendants were enjoined in accordance with the prayer of the petition.
    On petition in error to the circuit court, that judgment was reversed.
    
      Theodore Ilorstmcon, for plaintiff in error.
    
      Bendigs, Foraker da Dinsmore, for defendants in error.
    
      A. J. Cunningham and J. T. DeMar, for defendant trustees.
   By the Court:

The act whose validity is challenged (91 O. L., 679), is void, being an act of a general nature, not having a uniform operation throughout the state. It is not deemed necessary to add to recent expression of our views upon this subject. Hixson v. Burson et al., 54 Ohio St., 470; State ex rel. The Attorney General v. Davis et al., 35 W. L. B., 387. The circuit court could not have regarded the act as valid.

But the record shows that Alter, before bringing the suit, had voluntarily paid all the taxes to be assessed against him for carrying out the provisions of the act. True, the petition alleges that the defendants were about to issue bonds for that purpose, but this allegation is embraced within the general denial of the answer. Upon the record, therefore, no burden, was to be placed upon him for the purpose of carrying out the void act except the levy of the tax which he had voluntarily paid before bringing the suit. At the time of the suit there was, therefore, no remedy available to him.

It will not be a mis-appropriation of the moneys now in the treasury to the credit of this fund to use them for the purpose for which they were voluntarily paid. They cannot be recovered by those who voluntarily paid them, nor can they be properly devoted to another purpose.

Judgment affirmed.  