
    Joseph Jonas v. The City of Cincinnati.
    The council of the city of Cincinnati are prohibited by their charter from assessing and collecting a tax in 1848 for lighting a street in 1845.
    The city council can create no debt of the kind beyond the fiscal year.
    Were such tax legal, apercentage for collector’s fees could not be added to nor the costs of proceedings before the mayor.
    This is a bill in chancery reserved in the County of Hamilton.
    The bill is filed for the purpose of enjoining the city of Cin cinnati from collecting a special tax levied on the property of complainant, to pay the expense of lighting the street in front of his property with gas.
    The 14th section of the city charter, passed March, 1884, gives the city council the power, on the petition of the owners of property bounding on any street, to have it lighted, and to levy and collect a tax on the front foot of the property so bounding on the street. The third section of the act amending the city charter, passed March, 1838, provides that the city council shall have power to light the city or any part of it, either with or without petition, and that the council, for defray ing the expense thereof, shall have power to levy and collect a special tax from the real estate bounding on the section that may be so lighted, in such manner as they shall provide by ordinance. The fourth section of the same act provides that the tax so levied, shall be a lien on the real estate on which it may be assessed. The third section of the act of 1839, amendatory of the city charter, contains a proviso of a similar character, for levying a special tax for lighting the city, on the real estate bounding on the section lighted, in such manner as the city council shall provide by ordinance.
    On the 21st of June, 1843, the city council passed an ordinance, providing for the mode of proceeding in lighting the city, and in assessing and collecting the tax to pay the expense of the same.
    On the 12th of September, 1843, the city council passed another ordinance, amendatory of the ordinance of June, 1843. By these ordinances it is provided, amongst other things, that when the city council shall determine to light any part of the city, they shall pass an ordinance to that effect, and shall direct a special tax to be assessed on the real estate bounding on the section so lighted, and that the city council shall also determine the amount to be levied on the front foot of such real estate. These ordinances also provide, that when an ordinance shall be passed, making such assessment, the city clerk shall, as soon as practicable, make out a copy thereof, with a plat of the district so assessed, and deliver it to the city collector, who shall proceed to collect the tax; and that he shall make return of all the delinquents to the mayor.
    On the 17th of July, 1844, the city council passed an ordinance providing that a large part of the city should be lighted, embracing Third street from Walnut to Main, on which the complainant’s property is situated. The ordinance also enacts, in general terms, that a special tax shall be levied and collected from the owners of real estate bounding and abutting on the streets, or landings so lighted. With the exception of this general provision, nothing is done towards the assessment and col* lection of a tax to defray the expense of lighting.
    No further action was had in the matter, by the city council, until 1848. On the 11th of February of that year it passed an ordinance assessing a tax of fifteen and one-eighth cents on the front foot of the property on Third street, between Walnut and Main streets, including the property of complainant. This tax was levied to pay the cost of lighting the street for a year, commencing on the 3d day of October, 1845. The complainant’s property was returned delinquent to the mayor of the city, who in accordance with the provisions of an ordinance of the city, passed May 29th, 1839, providing for the sale of lots delinquent for special taxes, issued his warrant to the marshal, directing him to seize and sell the said property, or so much of it as might be necessary to pay the tax, and also three per cent, added for collector’s fees, and two dollars and ninety-two cents the costs of the proceedings before the mayor.
    The marshal having proceeded to advertise the property for sale, the complainant filed this bill, alleging the illegality of the tax and praying for a perpetual injunction, restraining its collection.
    
      Pugh Pendleton, for complainant,
    made these points :
    1. That the lighting of the city is of general and public utility, and its expense must be defrayed by a tax generally assessed ; and that special taxes for that purpose, violate the fourth section of the bill of rights. Sutton v. The City of Louisville, 5 Dana’s Rep. 23; Parks v. The Mayor of Boston, 8 Pick. 225.
    2. That, although the charter of 1839 authorizes the city to assess special taxes, in such manner as the council “ may provide by ordinance,” yet, such ordinance must be reasonable, and the assessment of taxes under it just and equal; and that the ordinance of 1839, now sought to be enforced, is unreasonable, and the assessment unjust and unequal. 1 City Ord. 15, 16, 37, 40, 48, 173; Sharp v. Speir, 4 Hill’s Rep. 86; 2 City Ord. 29, 32; 3 City Ord. 27.
    3. That the ordinance of 1841, for lighting the city with gas, is illegal, and violates, especially, the 25th section of the original charter; and that no taxes accruing under it, are chargeable upon the property of private citizens. 1 City Ord. 22, 82.
    4. That the ordinance of February 11th, 1848, is illegal and void, because it assesses as well collector’s fees as the tax itself. The Canal Bank v. The Mayor of Albany, 9 Wend. 244; The Matter of William and Anthony streets, 19 Wend. 682; 3 City Ord. 25, 26; The State v. Taylor, 10 O. R. 378.
    5. That the said ordinance of 1848, as regards this case, is ex post facto in its operations, and therefore void. Culbertson v. The City of Cincinnati, 16 Ohio Rep. 574.
    6. That the mayor had no authority to render any judgment in the premises. 1 City Ord. 173; Dixon v. The City of Cincinnati, 14 Ohio Rep. 250.
    7. That the award of execution for collector’s fees, interest, and costs, as well as for the tax, is illegal and void.
    8. That the city has no authority, under her charter, to seize and sell real estate for taxes. She can only assert her lien or claim, by bill in equity or action at law. Sharp v. Johnson, 4 Hill’s Rep. 96; Doe v. Chunn, 1 Backf. 336.
    9. That the warrant of sale is void, because it does not pursue the general statute regulating executions, but does prescribe an unfair method of offering property to vendue. Gwynne v. The City of Cincinnati, 10 Ohio Rep. 192.
    
      Daniel Van Matre, for defendant.
   Caldwell, J.

A number of objections are presented,'by complainant’s counsel, to the assessment and mode of proceeding, in the collection of this tax, which, it is contended, render* the proceedings illegal.

The first objection we shall notice is, that the city council could not assess and collect a tax, in 1848, for lighting the city for the year commencing in October, 1845.

The 25 th section of the city charter provides, that it shall not be lawful for the city council to make or authorize any contract, by ordinance or otherwise, for the payment of money at any day beyond the current fiscal year, in which such contract is made, except as provided in the preceding section. (The preceding section here referred to, merely authorizes the city to borrow $80,000, to pay the unfunded debt of the city.) The 25th section further provides: “ Nor shall it be lawful for said city council to contract or authorize any loan, except as hereinbefore excepted, not predicated upon the revenues of the current fiscal year, in which such loan is made. If any city council shall contract or authorize a debt or loan, in either of the cases specified, contrary to the provisions of this section, every such contract is hereby declared illegal and void, as against he property and revenues of the city, and of full force and obligation against the separate private estates of every member of the city council, who was present in council when such debt or loan was contracted or authorized, and who did not record his vote against the same, and forthwith make known the fact, through some newspaper of general circulation in the city.”

The latter part of the section provides, that the holder of any such debt or loan may proceed against any one, or all, or any intermediate number of the members of the city council, on such claim.

By this section of the charter, the legislalure have, in the most explicit manner, prohibited the city council from contracting any debt beyond the fiscal year. If the city council had, at the time the contract was made, in 1845, passed an ordinance that the expense of lighting for that year, should be paid in 1848, by a tax then assessed for that purpose, it would have come within the letter of the prohibition. It is none the less a violation of its spirit, that the council did not pass the ordinance providing for its payment, until 1848. This restriction on the city council is a wise and beneficial provision, and the good of the city requires that it should be strictly complied with.

Another objection has been taken to the adding three per cent, on the amount of the tax for collector’s fees.”

The city council have no authority for levying and collecting special taxes except for specified purposes. In this instance, they were only authorized to collect taxes for lighting the city. They must act strictly within the provisions of their charter — they can add nothing to the tax bjr implication.

The collector is an officer of the city, and his services must be paid for out of the general revenues of the city, unless otherwise provided for by the charter. The same may be said of the mayor’s fees. Neither could have been collected in this way, if the tax had been legal.

On the point whether the city have power to sell real estate in this way, for this kind of tax, the court have not been able to agree. We have not thought it necessary to pass on the other points made in the case.

We believe the tax was assessed without authority of law, and will therefore decree that the city be perpetually injoined from proceeding to collect it.  