
    *The State of Ohio, ex rel. James Anderson, v. Jesse A. Harris et al., Commissioners of Holmes County.
    1. The act of April 6, 1866, to provide for the payment of local bounties, pledged to volunteers under the calls of the president for volunteers, issued July 2 and August 4, 1862 (63 Ohio L. 155), is not repugnant to section 28, article 2, of the constitution of this state. Cass Township v. Dillon, 16 Ohio St. 39, approved and followed.
    2. The performance of the duty enjoined, by the act, on the commissioners to levy the tax therein provided for, is not limited to the year 1866. In requiring the tax to be levied and the bounties to be paid, the act is imperative; in prescribing the time within which the levy is to be made, it is directory; and the neglect of the commissioners to levy a tax, within the time required, will not deprive the volunteers, who are not responsible for the default, of the bounty the act was passed to confer.
    3. The taxes levied under the act are to be placed on the tax duplicate and assessed as other taxes against the taxable property for the year in which, the levy is made.
    4. In determining whether the system of paying bounties, described in the act, had been adopted in any county, the commissioners act in a ministerial and not in ajudicial capacity. If the facts existed which made the statute applicable to their county, they were bound to ascertain the facts correctly, and to perform the duty which the statute enjoined.
    
      6. Mandamus is the proper remedy to compel the commissioners to proceed under the statute.
    Application for a peremptory mandamus to compel the commissioners of Holmes county to levy a tax under the act of April 6, 1866 (63 Ohio L. 155), “ to provide for the payment of local bounties pledged to volunteers under the calls of the president for volunteers, issued July 2 and August 4,1862.”
    The first section of the act provides that the boards of county commissioners in the several counties of the state, wherein was adopted the system of paying bounty, in addition to the government bounty, to volunteers under said calls from the president, and such bounty was pledged to volunteers entering the service of the United States under said calls at the time of enlistment, whether so pledged by the county commissioners acting in concert with military committees, or by the commissioners and committees acting independently and directly or through sub-military committees, or by recruiting officers appointed by the governor, acting with the acquiescence of military committees, are authorized and! required to levy, by tax, upon the grand list of taxable property of such counties, for the year 1866, an amount sufficient *to-pay each volunteer from such county under said calls, to whom payment was pledged, all that part of said bounty remaining unpaid, together with interest at six per centum per annum; provided, that no larger amount than fifty dollars to each volunteer from any county shall be allowed.
    The second section of the act provides that, to determine the-number of volunteers to be paid, and the amounts necessary to be-raised in the counties referred to in the act, the boards of commissioners of such counties will be governed by the corrected lists-of those having enlisted, from the issuing of the first call referred to in the first section of the act up to the time of making the-draft under said calls, as those lists were made for the guidance of the draft commissioners, taken in connection with the bounty already paid to such volunteers by the county military committees; and that all taxes levied under the provisions of the act shall be-placed upon the tax duplicate as other taxes against the same taxable property, and be styled volunteer bounty fund, and collected as other taxes ; and that the money so raised shall be applied to-the payment of the amount due to any volunteer, as limited and restricted in the first section of the act.
    An alternative writ of mandamus was allowed, to which the-defendants answered in substance as follows:
    1. Before and at the time of the enlistment of the volunteers mentioned in the writ, there was no law of the state authorizing any county, or any person or authority, to obligate any county to-pay a bounty to volunteers, in addition to the government bounty, nor, on behalf of any county, to adopt a system of paying such bounty to volunteers in any county, nor to make promises and pledges on behalf of any county to pay such bounty. The alleged promises and pledges of bounty, mentioned in the writ, are void as against the county and its commissioners, and the act of the-general assembly providing for the levy of the tax mentioned in the writ, is retroactive and unconstitutional.
    2. The defendants have no authority to do any act except such as is prescribed by the laws of the state. The act of the general assembly providing for the levy of the tax mentioned in the writ, had become inoperative before the writ was served *upom the defendants, for the reason that the tax, by the provisions of the act, was to be levied upon the grand list of the taxable property for the year 1866, and to be placed on the duplicate for that year and not afterward; and the duplicate for the year 1866 was mad© out and delivered to the treasurer of Holmes county by the time prescribed by law, and before the writ was served upon the defendants, and there is now no law of the state authorizing or requiring them to levy the tax as commanded by the writ.
    3. By the said act of the general assembly, the commissioners of the several counties are invested with a discretion to determine whether or not a system of paying a bounty in addition to the government bounty, was adopted in their respective counties, and whether or not such bounty was pledged to such volunteers and in the manner described in the act, and whether or not the persons who claim such bounty are the persons entitled to it under the act, the number of volunteers to be paid and the amount due each, and the amount of tax to be levied to pay the bounty.
    At the June session, 1866, of the commissioners of Holmes county, a number of persons appeared before them, and demanded for themselves and a large number of others, the levy of the tax mentioned in the writ. No evidence was offered, except a list of names of those who were represented as being entitled to the benefits of the act, the list having been made, as the commissioners were informed, by G-. W. Everett, the agent or attorney of said persons. The commissioners examined into such demand and claim, and made diligent search and inquiry into the facts connected therewith, and procured legal advice thereon; and having duly and fairly considered the facts presented and ascertained in reference to such demand and claim for bounty, were unable to conclude that a system of paying a bounty to volunteers had ever been adopted in the county, or that any promise or pledge of bounty had ever been made, as described in the act, or that any corrected lists of' enlisted volunteers, such as are described in the second section of the act, had ever been made; and being fully advised in the premises, the commissioners refused to allow said claim and demand, and refused to levy the tax as *recited in the writ. No other or further claim or demand was ever made for the bounty or the levy of the tax. Wherefore the commissioners, having exercised the discretion vested in them by law and decided upon the matters, mentioned in the writ, ought not now to be required to form or adopt such opinion and judgment of said matters as is commanded by the writ.
    4. There were no corrected lists of enlisted'volunteers, sueh as are mentioned in section 2 of the act, ever made in the county. Wherefore the defendants have been and still are unable to determine, in the mode prescribed in the act, the number of volunteers to be paid, or the amount of tax to be levied.
    5. It is not alleged in the writ that the county commissioners acted in concert with the persons or committees alleged to have made the promises and pledges of bounty.
    6. No system of paying bounty to volunteers, in addition to the government bounty, such as is contemplated in the act, was ever adopted in the county, nor was any pledge of additional bounty made to the volunteers mentioned in the writ, except such as could be raised by subscription set on foot at a public meeting at the time they volunteered; and the amount thus raised was distributed among such volunteers as was promised; and the military committee of the county did not promise, or authorize any recruiting officer to promise, any further bounty; and said volunteers did not enter the service of the United States under any promise or pledge of any other additional bounty.
    The case was submitted to the court upon the questions of law thus raised by the answer to the writ, the issues of fact being reserved for subsequent trial.
    
      L. M. Gritchfield and JD. 8. Uhl, for defendants:
    1. The act of the general assembly (63 Ohio L. 155), providing for the levy of the tax mentioned in the alternative writ, is retroactive, in violation of section 28 of article 2 of the constitution of Ohio. 5 Ohio St. 249; Rairden and Burnet v. Holden, Adm’r, 15 Ohio St. 207; The Society v. Wheeler, 2 Gallison, 139; C., W. & Z. R. R. Co. v. Comm’rs of Clinton Co., 10 Ohio St. 102.
    *The alleged promise of bounty made by the military committee and recruiting officers, if made, was the mere promise of individuals acting in an unauthorized capacity, and not of the county. The act requiring a tax to be levied to pay this private debt is beyond the scope of legislative authority, and operates to take away and impair vested rights of property of the people sought to be taxed, and is within the definition of a retroactive law.
    At the time of the alleged pledge of bounty, and before, no law authorized it, on behalf of any county, by any of the committees or persons mentioned in the writ. Therefore the promise of bounty was, as against the people and the county, void for want of legal sanction. And the legislative act which asserts the validity of such a promise of others, as against the county, is retroactive. 10 Ohio, 374; 15 Ohio St. 207.
    2. The act of the general assembly became inoperative before the service of the writ upon the defendants. The time within which the act required the tax to be levied was confined to the tax year 1866.
    That this was the legislative intent is evident from the state of legislation on the subject. A statute similar to the one in question was passed April 7, 1863 (60 Ohio L. 61), providing for a tax to be levied for the year 1863. Another similar statute was passed April 8, 1865 (62 Ohio L. 108), providing for a tax to be levied for the year 1865; and April 6, 1866, the statute in question was passed, which is an exact copy of the act of 1865. Why pass the act in question if the act of 1865 was sufficient authority to levy a tax for the year 1866 ? And, since the passage of the act in question was deemed necessary to authorize a tax for 1866, and the act of 1865 deemed no authority for that purpose, it follows as an inevitable conclusion that the legislature did not intend the act of 1866 to apply to a subsequent year. Analogous statutes show the same intent. 61 Ohio L. 74; 62 Ohio L. 87, 116, 166; 63 Ohio L. 59.
    3. The command to levy the tax requires the defendants to adopt the judgment of the court upon matters left in their discretion by the act of the general assembly, thereby limiting and controlling their judgment in an unlawful manner. Const., *sec. 2, art. 4; 1 Ohio St. 432, 322; 12 Ohio, 54; 19 Ohio, 415; 1 Ohio St. 36, 37, 78; 3 Pike, 427; 12 Barb. 446; 4 Ohio, 351; 5 Ohio, 542; S. & C. Stat. 1125, sec. 569; 1126, sec. 570; 1127, sec. 576; Moses on Mandamus, 50, 107, 108. The county commissioners must be the judges of the facts necessary to he found to enable them to determine the amount of tax to be levied. The statute leaves it to them to determine whether the claim set up comes within the case contemplated in the act of the general assembly.
    If the commissioners have a discretion under the act, the writ may command them to exercise it, if they have not done so; and if they have exercised that discretion, the present proceeding can not control it. In either case the proceeding is inapplicable.
    
      The law points out a full and complete remedy for the relator; S. & C. 251, sec. 38; 247, sec. 18. If the act in question be valid, the relator and each of the other volunteers mentioned in the writ might have, respectively, presented their claims to the commissioners for allowance, and, upon their rejection, taken an appeal to the court of common pleas. The remedy is clear, adequate, and specific.
    
      G.W. Everett, for the relators:
    1. The statute in question is not retroactive or unconstitutional. It does not affect any vested rights, and raises no new obligation or duty. C., W. & Z. R. R. Co. v. Comm’rs of Clinton County, 1 Ohio St. 78; Rairden and Burnet v. Holden, Adm’r, 15 Ohio St. 207; Sedgw. Const. and Stat. Law, 373, 374, 408, 478, 501, 505, 554.
    2. The statute is not inoperative by lapse of time, but is still in-full force, and will so continue until the tax is levied.
    3. We can not discover the necessity of the commissioners deciding so many questions before they levy the tax and procure the-means to jnay those entitled to bounty. The statute requires the tax to be levied for the number who enlisted between the first call and the draft, and if these men are not all entitled to be paid, then reject those who are not entitled to the benefits of the act.
    4. The relator and those interested with him have not a cornplete *remedy at law. This is a proper case for a mandamus. 1 Ohio St. 78; 51 Ohio L. 156, 157; 7 Ohio St. 327; Moses on Mandamus, 128.
   White, J.

The writ in this case is founded on the act of April 6,1866, providing for the payment of local bounties to volunteers, under the calls of the president of July 2 and August 4,1862; and its object is to compel the respondents to levy a tax for the payment of the unpaid bounties, due volunteers from Holmes county, under that act. 63 Ohio L. 155.

The respondents, in their answer to the alternative writ, set up three grounds, each of which, they claim, constitutes a clause sufficient in law for refusing to award a peremptory writ. These-grounds are as follows:

1. That the act is in violation of section 28, article 2, of the constitution of the state.

2. That the time within which the act required the tax to be levied was limited to the year 1866; and that the act has, therefore, by lapse of time, become inoperative.

3. That the levying of the tax is left, by the act, to the discretion •of the commissioners.

We are unanimous in the opinion:

1. That the act in question is not void, as being repugnant to .section 28, article 2, of the constitution. Its validity does not depend, as counsel for the respondents assume in their argument, •on the existence of power in the legislature to create a contract between the county and the volunteers; nor is it an act which impairs vested rights, or the validity of contracts. The authority for the act is found in the general grant of legislative power, which includes taxation in all its forms, both local and general, unless restricted by other parts of the constitution.

The constitutionality of laws of the nature of the one in question, and the grounds on which they rest, were declared in Cass Township v. Dillon, 16 Ohio St. 39, which counsel in the present •case seem to have overlooked.

The decision in that case is decisive of the present question. The taxes in that case were levied to refund bounties which had *been previously and voluntarily paid. The taxes required to be levied by the respondents are to be paid to the volunteers ■directly. The principle, on the question of constitutional authority, in both cases is the same.

2. The performance of the duty enjoined, by the act, on the commissioners to levy the tax, is not limited to the year 1866.

The intention of the legislature was to invest the volunteers, in the counties to which the act applies, with the right to the bounty; and it was not intended to make the right dependent on the mere ■choice and pleasure of the commissioners. If it had been designed to make right depend upon the ojrtion of the commissioners, the imperative language found in the statute would not have been used. A contrary construction would give the act a capricious operation. Its enforcement in the several counties, under a similar state of fact, would depend upon the particular views that might be entertained by the commissioners of the respective counties, as to its validity, policy, or justice.

In requiring the tax to be levied and the bounties to be paid, the .act is imperative; in prescribing the time within which the levy is ¡to be made, it is directory. The neglect or refusal of the commissioners to levy the tax within the time required, will not deprivet the volunteers, who had no control over the commissioners and are not responsible for their default, of the bounty the act was passed to confer. The neglect of the commissioners to perform their duty at the time required can not nullify the act. The People v. The Supervisors of Chenango, 4 Selden, 317, 330.

The taxes levied under the act are to be placed on the duplicate and assessed as other taxes against the taxable property for the year in which the levy is made. ,The reason for directing the levy to be made upon the grand list for 1866, was the expectation that the act would be obeyed; and if it had been, the property on the duplicate of that year would have been the only property that could have been assessed.

The object of the direction to make the levy upon the property on the list for the year 1866, was not to discriminate between the taxable property of that year and the taxable property of other years, with the view of laying the burden *on the specific property that was on the duplicate in 1866, and of exonerating the taxable' property of other years, but to point out the taxable property of the county, as the source from which the money was to be raised under the provisions of the act.

3. The act applies to all the counties in which the system of paying bounties as therein described had been adopted, and the levying of the tax is enjoined as a duty upon the boards of commissioners of such counties. In determining whether such system of paying bounties had been adopted in any county, the board acts in a ministerial and not" in a judicial capacity. It is no answer to the alternative writ, that the resiDondents set up that they were unable, after investigation, “ to conclude that the system of paying bounties described in the act had been adopted in Holmes county.” And this is especially so, as they claim to justify their alleged dereliction on the ground that the statute imposing the duty is inoperative for any purpose.

If the facts existed which made the statute applicable to their county, they were bound to ascertain the facts correctly, and to perform the duty which the statute enjoined; as much so as the sheriff is bound to determine correctly on whom, or on what property, to serve or execute process.

The carrying out of the details under the statute, and the passing upon the claims of particular individuals, and the distribution of the funds when raised, may involve matters of judgment and discretion, which should be left to the commissioners, subject of course to be reviewed, or appealed from, by the ordinary course of proceeding.

But, however this may be, we regard the writ of mandamus as. a proper remedy to set the commissioners in motion, and to compel them to proceed under the statute, without, however, thereby undertaking to control the exercise of their judgment and discretion, in matters of detail that may arise. Hull v. The Supervisors, 19 Johns. 259 ; Bright v. The Supervisors, 18 Johns. 242 ; The People v. Mead, 24 N. Y. 122, 123 ; Moses on Mandamus, chap. 17.

*The case will stand for trial on the issues of fact.

Day, C. J., and Welch, Brinkerhoee, and Scott, JJ., concurred.  