
    Lima v. McBride.
    1. If two statutfes provide for the levy of a road tax, and the record of the board of county commissioners, levying such tax, is susceptible of a construction which bases the levy equally well on either statute, hut as applied to one, the levy is excessive, and applied to the other, is not excessive, such levy will, prima facie, be regarded as based on the latter act, although the tax therein mentioned can only he levied to provide for a particular condition of the roads, -while the other act is general, and the levy actually made is in general terms.
    
      % Where the county commissioners, intending to make a levy of taxes for road purposes, under the act of April 30, 1869 (66 Ohio L. 60), cause sueh levy to be entered on the record, in general terms, the tax will not he regarded as invalid, or made under the act of 1877 (74 Ohio L. 92), on the mere ground that the record does not show the existence of facts which warranted the levy under the former act.
    .3. The council of a municipal corporation is not entitled to control any part of the taxes levied for road purposes under the act of April 30, 1869 (66 Ohio L. 60), except as provided in the supplementary act of 1873 (70 Ohio L. 118).
    Mandamus. Lima, a city of the second-class, in Allen •county, obtained in this court an alternative writ of mandamus to compel McBride, auditor of the county, to place to the credit of the city the amount of certain taxes levied by tbe county commissioners for road purposes, in June, 1877, and issue to the city a warrant therefor on the county treasury, or show cause why he fails to do so. The case was heard on the alternative writ, the answer, and an agreement of the parties. The writ contains substantially • the same averments as the application. Omitting merely formal parts, the writ, answer, and agreement are as follows :
    Writ. — The city of Lima has represented that it is a municipal corporation, duly incorporated as a city of the. ■second class under the laws of the State of Ohio; that it has a population of less than ten thousand, and embraces a county-seat, and is situated in the county of Allen, in said state, and that said Nelson McBride is auditor of said Allen county, Ohio; and that at an adjourned session of the board of commissioners of said county, on June 7, 1877, the following proceedings were had, as appears by their journal No. 4, page 207:
    “ The commissioners made a levy for county road fund •of four mills, and ordered the auditor to place the same upon the tax duplicate of Allen county, Ohio, for the year 1877, for collection.”
    And that no other or further proceedings in relation to said levy were ever had by or before said county commissioners.
    And, further, that said journal is the only record of the •proceedings of the said county commissioners as a corporate body, and that it is kept by said Nelson McBride, auditor as aforesaid, as required by law, and that by reason of said levy as aforesaid, said auditor placed said tax on the grand duplicate of Allen county, Ohio, making one-half thereof to be collected with the installment of taxes due December 20,1877, and the other half to be collected with the installment of taxes due June 20, 1878, and that said duplicate included all the property, both chattel and real, assessed for taxation in said city of Lima, and that the amount collected by the treasurer of said county of Allen, by reason of said levy, was included by him in his February, 1878,. settlement with said auditor ; and, further, that no part of said road tax so by them levied, was set apart by said county commissioners for the purpose of building and repairing bridges in said county, and that no other or further proceedings were had by them in relation thereto.
    And, further, that no roads known as turnpike roads have ever been located or constructed in the county of Allen.
    And, further, that a large amount of money, the exact amount of which is unknown to the court, but which the court is informed amounts to the sum of three thousand seven hundred dollars ($3,700), was collected by the treasurer of said county of Allen, by virtue of said tax levy aforesaid, from the property assessed for taxation in said city of Lima, and was included in said February, 1878, settlement of said treasurer of Alleu county with said auditor of Allen county.
    And, further, that said Nelson ' McBride, auditor as aforesaid, and the treasurer of said county of Alleu, had a settlement in February, 1878, as required by law, and that it was the duty of said Nelson McBride, auditor as aforesaid, immediately after said settlement, to credit said city of Lima, along with other proper items which he did credit, in the account required by law to be kept by him, and which is kept by him, with the net amount of taxes so collected by said treasurer of Alleu county, Ohio, by virtue of said levy, from the property assessed for taxation in the «aid city of Lima, and that said Nelson McBride, auditor as aforesaid, neglected and refused to credit said net amount of taxes to said city of Lima, and still neglects and refuses so to do.
    And that after said settlement so had between said Nelson McBride,-auditor as aforesaid, and said treasurer of Allen county, in February, 1878, and after said Nelson McBride, auditor as aforesaid, had stated the account of the net amount of taxes from all sources due to said city of Lima from the treasurer of said county of Allen, as ascertained and determined at said settlement in February, 1878, the treasurer of said city of Lima duly demanded from said Nelson McBride, auditor as aforesaid, an order on said treasurer of Allen county, for the net amount of taxes then due to said city of Lima, and said Nelson McBride, auditor as aforesaid, issued and delivered to said treasurer of said city an order for all the taxes then due to it from said county treasurer, except the net amount of taxes collected by virtue of said levy on the property assessed for taxation in said city of Lima, Ohio, and that said Nelson McBride, as such auditor, neglected and refused to include in the order then issued by him as such auditor the said net amount of taxes so collected from the property assessed for taxation in said city of Lima, by virtue of said levy, and still neglects and refuses so to do, and asserts his intention to continue to refuse to make said credit and issue said order.
    Now, we command you that immediately after the receipt of this writ, you ascertain and credit the city of'Lima, Allen county, Ohio, in the account required by law to be kept by you with said city of Lima, with the net amount of taxes collected by the treasurer of Allen county, Ohio, from all the property, both chattel and real, assessed for •taxation in said city of Lima, by reason of the said levy made by the board of commissioners of Allen county, Ohio, ■on June 7, 1877, and hereinbefore set out, as appears by the settlement had between you and the treasurer of said -county of Allen, in February, 1878, and thereupon that having ascertained and credited said net amount of taxes1 as aforesaid, you, as such auditor, execute and deliver to-the treasurer of said city of Lima an order on the treasurer of said county of Allen for the net amount of taxes so ascertained and credited, or that you show cause before the-judges of our supreme court, on the 13th day of July, 1878, at 9 o’clock A. m. of said day, why you have not. done so.
    Answer. — That the levy of four mills on the dollar on all taxable property in said Allen county, Ohio, which, in-.the year 1877, was ten millions four hundred and sixty-five-thousand two hundred and ninety-six ($10,465,296) dollars-■of taxable property, was made by said board of commissioners for the purposes and uses provided for in the act of April 30, 1869, and for no other purpose. That said levy was made and intended to be made by said commissioners1 under the authority conferred upon them by said act.
    That the commissioners, acting and intending to act, under the statute of April 30, 1869, and as they had done-in the years 1875 and 1876, proceeded on the 9th day of May, 1878, to advertise for bids for the reconstruction and repair of certain of the principal highways of said county,, and did on the 30th day of May, 1878, award contracts for said reconstructing and repairing said highways to the amount, at the contract price thereof, of $26,500. That the total tax collected at December collection, 1877, and included in the February settlement, 1878, of money under said levy, amounted to but the sum of $22,477.41. That -no portion of said tax so collected and included in said. February settlement, 1878, now remains in the treasury of said county, which is not already appropriated to the purposes contemplated by said act of April 30, 1869.'
    That said commissioners claim the right to control the-fund arising from said levy for the purposes named in said act of April 30,1869, and the act supplemental thereto, of April 9, 1873 (70 Ohio L., 118), and deny the right of the-defendant to, in any manner, interfere with the same, except upon the order of said commissioners.
    
      That no portion of- said fund has remained in the treasury of said county unexpended and unappropriated for six months after the annual September settlement for the fiscal year during which said road tax was collected. And he says that said September settlement has not yet been made, and said fiscal year has not yet ended.
    Agreement. — dt is hereby agreed by and between the plaintiff and defendant:
    
      First. That all allegations of fact contained in the alternative writ of mandamus issued in this case, upon which proof would be required of the plaintiff by the court, shall be taken and held by the court as proved by the plaintiff.
    
      Second. That all allegations of fact contained in the answer of the defendant herein, upon which the court would require proof, shall be taken and held by the court as proved by the defendant.
    
      Third. That the above agreements shall not relate to any allegation of a conclusion of law, or any other matter to which proof is not required.
    
      Fourth. That this cause shall be submitted upon the motion for a peremptory writ, and this agreement^ as upon final trial of this cause.
    On March 9, 1868, an act was passed “ relating to roads and highways.” 65 Ohio L. 14; 2 Sayler, 1428. It contains thirty sections. In the 17th section, provision was made for the levy of a road and bridge tax by the county commissioners. That section was amended in 1871 (68 Ohio L. 116; 3 Sayler, 2250); in 1872 (69 Ohio L. 114; 3 Sayler, 2692); in 1876 (73 Ohio L. 149); in 1877 (74 Ohio L, 93) ; and in 1878 (75 Ohio L. 436, 474, 507) ; the latter act being in force. The section, as amended in 1877, was in force when the taxes in controversy were leviedand collected, and provided, among other things, as follows: “ That the commissioners of the respective counties in the state are hereby authorized, at a special session in May, 1877, to levy a tax for road and bridge purposes, as follows, . . in counties where the taxable property is less than twenty , millions of dollars and over ten millions, not more than three mills ; . . . and the auditor- of the county shall place the same-on the tax duplicate for the year 1877, and divide the same equally; one-half to be collected in the installment of taxes due December 20,1877, and the other half to be collected in the installment due June 20, 1878. The county commissioners shall set apart such portions of the road tax by them levied as they may deem proper, to be applied to the building or repairing of bridges in their respective counties, which portiou so set apart shall be called a bridge fund, and shall be entered on the duplicate of taxes for the county by the auditor of the county, in a separate column from the other levies for road purposes, and shall be collected in money and expended, except as may be otherwise provided by any local law heretofore enacted, under the direction of the commissioners of the county, in the building or repairing of bridges and culverts, or both, in their respective counties; provided, that in case an important bridge belonging to or maintained by any county, has been or may hereafter become dangerous to public travel, by decay, or otherwise, and the restoration thereof may be necessary for the-public accommodation, the commissioners of such county may levy a special tax for that purpose not exceeding one and one-half mills on the dollar of the taxable property of such county, the proceeds of which tax shall be applied solely to restoration of such bridge or bi’idges ; and the commissioners may anticipate the collection of such tax by borrowing any sum not exceeding the amount so levied, or to be levied, at any fate of interest not exceeding eight per cent., and issue notes or bonds therefor, payable upon the collection of such tax; provided further, that nothing herein contained shall affect the right of city councils to receive and expend the proportion of levies herein, as authorized by the six hundred and forty-first section of the municipal code.”
    Section 641 of the municipal code, as then in force, was in 68 Ohio L. 133.
    Section 21 of the above-mentioned act of March 9, 1868, provided how the tax might be paid, and where it should Re expended. The section was amended by an act passed the same year (65 Ohio L. 78; 2 Sayler, 1537); by the act of April 24, 1869 (66 Ohio L. 51); by the above-mentioned act of 1877 (74 Ohio L. 97): and again by the above-mentioned act of 1878. 75 Ohio L. 436, 478, 507. The amendment of 1877, which, as we have seen, was in force when the taxes in controversy were levied, provided, as- the amendment of April 24, 1869 (66 Ohio L. 51), hád provided, among other things, as follows :
    “All road taxes collected by the county treasurer shall be paid over to the treasurer of the township or municipal corporation from which the same were collected, and shall be expended on the public roads, and in building and repairing bridges, as hereinbefore provided, in the township and municipal corporation from which the said taxes wTere •collected, under the direction of the trustees of the proper township or council of such municipal corporation; and all funds heretofore levied for road pimposes, an<^ not expended, shall be expended by the trustees of the township or council of the municipal corporation from which the .same were collected, as other taxes collected under the provisions of this act.”
    Section 487 of the municipal code (66 Ohio L. 149, 231, now repealed; 75 Ohio L. 161, 392), provided as follows :
    “ Sec. 487. No tax assessed upon property within the territory attached to any corporation as aforesaid, shall be applied otherwise than within the territory in which the same is assessed ; and all taxes charged for road purposes ■on the property within the limits of the corporation, or the territory so attached, and collected by the county treasurer, shall be paid over to the corporation treasurer, to be specially appropriated by the council to street and road purposes within the corporate limits and territory so attached ; and the trustees of the township in which said territory is located and the council may agree upon a different distribution or division of said funds.”
    The act of April 30,1869 (66 Ohio L. 60; 3 Sayler, 1795), :is as follows:
    
      ' u Sec. 1. That whenever any one or more of the principal highways of any county have been so damaged br destroyed by freshet, land-slides, wear or watercourses,’ or by any other casualty, neglect, or inattention, as to render the same unfit for travel, and hinder free- and ■ necessary transportation, and the commissioners of •such county shall be satisfied that the ordinary levies authorized by law, for said purposes, will be inadequate to provide money necessary to repair such damages, or to remove' obstructions from, or make such changes in, such road or roads, rendered necessary by the aforesaid cause or causes, they shall be and. are hereby authorized, annually thereafter, to levy a tax at their June session [of] in the year one thousand eight hundred and seventy, and each year, of any sum not exceeding five mills upon the dollar, 'upon all taxable property of any such county, to be expended under their directions, in such manner as may seém tc^ them most advantageous to the interest of any such county, for the construction, reconstruction, or repair of such road or roads.
    - -'“ Sec.' 2. To anticipate the receipts which may come into the county treasury by virtue of the tax levied under authority of the provisions of this act, the said commissioners are hereby authorized to borrow, from time to time, such sums of money as shall not exceed, in the aggregate, fouf-fifths of the tax levied by this act; provided, that the money so borrowed in any one year shall not exceed four-fifths of the tax levied in any such year ; and the money 'so borrowed shall be paid with lawful interest at the county treasury out of the taxes so levied.
    ■ “ Sec. 3. During such years as the commissioners of any -county shall avail themselves of the piro visions - of this act, they shall levy no tax for road purposes other thau that whi h is prescribed by the provisions of this act.”
    ■ An act supplementary to the last-mentioned statute was passed in 1873 (70 Ohio L. 118; 4 Sayler,'2939). It is as follows-: ■ '
    
      
      “ Sec. 1. That all moneys, assessed and collected by, the commissioners of any county in the state, as authorized by the above-named act, and .remaining in the hands of the-county treasurer, unexpended and unappropriated, for a period of six months after the annual September settlement for the fiscal year.during which said road tax was. collected, shall be paid over to tbe treasurer of the township or municipal corporation from which thg same was-collected, and shall be.expended on the public roads, under the direction of the trustees of the proper township or municipal corporation, in such manner as may seem to them most advantageous to tbe interest of said township or corporation, for the construction, reconstruction, or repair of roads, and in building or repairing bridges.”
    - Irvine $ Briee, for the relator:
    The levy was not made under the act of April 30, 1869.. That act must be strictly construed. Cooley on Taxation, 209; Cincinnati v. Bryson, 15 Ohio, 625; Reed, v. Toledo, 18. Ohio, 161; Jonas v. Cincinnati, 18 Ohio, 318; Mays v. Cincinnati, 1 Ohio St. 268. The record can not be supported by presumption that the board discharged its duty. Cooley on Taxation, 234, 247, 332; Burroughs on Taxation, 398. Even if the levy was under the act of April 30, 1869, the-tax levied on property in Lima, and collected, must be paid to the city treasurer. Municipal Code, §§ 152, 155, 439, 487, 641, 644, 650, 651; Ridenour v. Saffin, 1 Handy, 464; Steubenville v. King, 23 Ohio St. 610. If no part of the tax can be expended in Lima, the act under which it was levied would be unconstitutional. Cooley on Taxation, 104; Burroughs on Taxation, 71.
    J. E. Richie, for defendant:
    The levy was made under the act of April 30, 1869. The tax having been levied, the presumption is that the commissioners performed their duty. Coombs v. Lane, 4 Ohio St. 112; Scovern v. The State, 6 Ohio St. 293; Broom’s Leg. Max. 729; Westerhaven v. Clive, 5 Ohio, 136; Radcliff v. Teters, 27 Ohio St. 66; King v. Kenny, 4 Ohio, 9; Thevenin v. Slocum, 16 Ohio, 519; Bank of U. S. v. Dandridge, 12 Wheat. 64; Ward v. Burrows, 2 Ohio St. 241; Williams v. E. Ind. Co., 3 East, 192; Kelly v. Connell, 3 Dana, 532; Wheelock v. Hall, 3 N. H. 310; Brown v. Connelly, 5 Blackf. 390; Hartwell v. Root, 19 John. 513. Section 487 of the municipal code did not affect the act of April 30, 1869. Repeals by implication are not favored. Dodge v. Gridley, 10 Ohio, 174; Ruffner v. Comm’rs, 1 Disney, 39. As to the power of the commissioners in the highways of a municipal corporation. Wells v. McLaughlin, Butman v. Fowler, 17 Ohio, 99, 101.
   Okey, J.

A fair construction of the legislation set forth in the statement of the case, requires us to say that the road funds, which by the act of 1877 (74 Ohio L. 92), and ¡section 487 of the municipal code (66 Ohio L. 231), were required to be expended in the municipal corporation, were taxes levied by the corporation, or the county commissioners under the act of 1877. The act of April 30,1869 (66 Ohio L. 60), and the supplementary act of 1873 (70 ■Ohio L. 118), are independent statutes, still in force, and unaffected by the act of 1877 or the legislation with respect to municipal corporations. The purpose for which the extraordinary levy is made, under the act of 1869, might be defeated by a division of the fund; and it clearly .appeal’s, from the supplementary act of 1873, that a municipal corporation can in no way control a tax levied under the act of 1869, until it can have the benefit of the supplementary act. As no case is presented for the operation of the supplementary act, the question before us is whether the tax in question was levied under the act of 1877 or the act of April 30, 1869.

Beside the claim, which we hold to he untenable, that ■even if the taxes were levied under the act of April 30, 1869, they must, under the act of 1877 and section 487 of the municipal code, be expended in the municipal corporation, the city further claims that the act of 1877 is general; that the levy, in the general form set forth in the record, is a-substantial compliance with that act; that the time specified for making the levy, that is, at a special session in May, 1877, was directory; that if the amount levied and collected was in excess of that authorized by the act, the-county auditor could not interpose the objection in this-case; that the act of April 30, 1869, has relation to a special condition of things, of the existence of which nothing appears in the record; and, therefore, that it necessarily follows the levy was made under the act of 1877.

Admitting the premises, does the conclusion follow that this was a levy under the act of 1877, and not under the-act of April 30, 1869 ? Possibly it is true that naming the time for making the levy was not a limitation on the authority of the commissioners, and it may also be true that the auditor could not avail himself of the defense that the-amount levied is in excess of that authorized by law (31 Ohio St. 432); but in the construction of these acts, in determining whether the levy was made under the act of 187T or that of 1869, the fact that the levy was made at the time,, and for an amount expressly authorized by the act of 1869, while it -was not made at the time directed in the act of 1877, and was in excess of the levy authorized thereby, is-of great importance. “ When an instrument is susceptible of two conflicting probable constructions, the court will adopt the construction which is most consistent with good faith, and will hold that such construction was intended by the parties; and this rule of construction applies to cases where an act or fact is fairly susceptible of two interpretations, one lawful and the other unlawful.” 2 Whart. Ev. §• 1249.

The commissioners of the county constitute aboard, and the county auditor is their secretary, who is required to “ keep- an accurate record of all their corporate proceedings.” 67 Ohio L. 104. The proceedings of the board are, in many respects, those of a court of special and inferior jurisdiction. In Anderson v. Commissioners, etc., 12. Ohio St. 685-648, it was' said : “ The lihaited record they ■direct to be made is to be considered evidence of the establishment of the road, although unaccompanied by proof of the essential requisites to the exercise of the jurisdiction conferred.” The same principle is recognized in Beebe v. Scheidt, 13 Ohio St. 406; Corry v. Gaynor, 22 Ohio St. 584; McClellan v. Miller, 28 Ohio St. 488; Frevert v. Finfrock, 31 Ohio St. 621.

In this case it appears the commissioners were clothed with authority to levy taxes for road and bridge purposes. 'They met as a board, at the time directed in the "act of April 30, 1869, took the subject of a levy for road purposes under that act into consideration, and made a .levy for the purpose, general in terms, in excess of that authorized by the act of 1877, but within the act of 1869, which was the .statute upon which they intended to base their action. ■Consequently, it appears the matter was within the juris■diction of the board. The authorities above mentioned, though referring to judicial action, are applicable; and, moreover, they are in accordance with the general rule. “Judicial officers, though of special and limited jurisdiction, will be presumed to have acted regularly as to all matters within their jurisdiction, unless the record shows to the contrary.” 2 Whart. Ev. § 1308; 2 Best’s Ev. § 360.

While the levying of taxes is a legislative power (Cooley -on Taxation, 33), the record of the officers making the levy will receive at least as favorable consideration as the records of an inferior judicial tribunal. In the well-conisidered case of West School District v. Merrills, 12 Conn. 437, it was said: “ There is no rule of law which requires any formal technical statement of the objects for which the -money is to be raised. All that can be required, in respect to such statement, to render the vote prima facie legal, is that it should appear from the vote, with reasonable cer■tainty, that the tax is laid for a purpose authorized by ■law.” The same view is strongly enforced in Adams v. Hyde, 27 Vt. 231; Blodgett v. Holbrook, 39 Vt. 336 ; West v. Whitaker, 37 Iowa, 598. And see, as supporting it, Gear hart v. Dixon, 1 Penn. St. 224; Swift v. Poughkeepsie, 37 N. Y. 511; Cooley on Taxation, 249; Burroughs on Taxation, 397.

We need not determine whether the commissioners are required or permitted to expend any portion of the tax in Lima. They have exclusive power over the fund, and it is to be expended under their directions, in such manner as may seem to them most advantageous to the interest of any such county, for the construction, reconstruction, or repair of any such road or roads.” 66 Ohio L. 60. The people of the whole county are supposed to have an interest in the public highways. The particular condition of things which called for the imposition of the tax is unknown to us, but we are bound to assume it justified a levy on all the taxable property of the county; and we are not warranted in saying that it would be a violation of the constitution to tax the citizens of Lima, in common with the people throughout the county, for the repair of roads on which the prosperity of the corporation may largely depend; and this does not conflict in any way with the authorities l’elied on by the counsel for the city. Burroughs on Taxation, 61; Cooley on Taxation, 104.

In holding that no case is made for relief, we do not mean to decide that the record of the county commissioners, in levying a tax, is conclusive. That the record of the board may be contradicted in some respects, even collaterally, and the action of the commissioners restrained, seems to be clear. 4 Curwen, 2819; Anderson v. Comm'r, supra; Carry v. Gaynor, supra; Hays v. Jones, 27 Ohio St. 218-230; Stephan v. Daniels, Ib. 527. Perhaps it may be difficult to reconcile Beebe v. Scheidt with these cases, in this respect, but it is unnecessary to undertake the task in. this case.

Peremptory writ refused.  