
    Board of Education v. State.
    
      Taxation — Constihitional law — Act commanding board of education to levy tax to pay claim assessed by individual — Estoppel.
    1. Where no obligation, legal or moral, rests upon a board of education, to pay a claim asserted against it by a private individual, an act of the general assembly, procured by the claimant, commanding such board to levy . a tax for its payment, is unconstitutional and void.
    2. In such case, if the board of education disputes the facts asserted by the claimant as the foundation of his claim, the general assembly, while it may make inquiry to ascertain, in' the first instance, the truth of the facts so asserted, yet is without authority to conclusively find and recite in the act providing relief, the facts in dispute, so as to estop the board of education from contesting them in a court of justice where the act is sought to be enforced.
    (Decided October 16, 1894.)
    Error to the Circuit Court of Fayette county.
    The defendant in error brought an action of mandamus against the plaintiff in error in the circuit court of Fayette county to compel it to levy a tax under and by virtue of the following act of the g’eneral assembly of this state:
    “Section 1. Be it enacted by the General AssembT/y of the State of Ohio, That the board of education of Marion township, Fayette county, Ohio, shall, at the next regular meeting of the said board of education, after the passage of this act, levy upon the taxable property of said Marion township, Fayette county, Ohio, not to exceed one mill on the dollar, as and for a contingent fund, for the purpose of refunding to A. C. Lindsay, former treasurer of said township, the sum of one hundred and' ninety-seven dollars and seventy-six cents, with interest thereon from April 1, 1882, which said sum was charged to said A. C. Lindsay, as treasurer, and said sum paid over to his successor in office, by mistake, and has not been refunded to him ; that said board of education shall certify said levy to the auditor of said Fayette county, Ohio, as required by law, and the clerk of said township shall draw an order upon the treasurer of said township in favor of said A. C. Lindsay for said sum of one hundred and ninety-seven dollars and seventy-six cents, with interest from April 1, 1882, to be paid out of the contingent fund of said Marion township, Fayette county, Ohio.”
    • In his petition he states in substance, that on and before September 29, 1874, and fop several years thereafter, he was the treasurer of said township of Marion, and as such was ex-officio treasurer of the school fund of said township. That the clerk of said township on said 29th day of September, 1874, pursuant to the order of said board of education, issued to one William Clark, a warrant for the sum of $197.76, payable out of the school fund of • said township, which the relator paid from said fund to the person in whose favor said order was drawn. That afterwards, when he came to settle with the county auditor, the said warrant having been lost, he was charged with the amount thereof, and that he has never been reimbursed for the same, and that when he came to settle with his successor in said office the amount of this warrant was charged to and paid by him to such successor. That in the year 1892 the relator found said warrant, presented the same to the said board of education, together with full proof of its having-been paid by him and his never receiving credit therefor, and requested that a warrant be issued to him for the sum due to him by reason of the premises, which said board refused to do, though admitting the facts to be as he claimed they were, on the ground that they had no power to go behind the settlements previously made. Whereupon he applied to the general assembly of the state and procured the act aforesaid, to be passed, and that said board have refused to levy a tax according to its requirements.
    To this petition the board of education answered as follows:
    “Now comes the defendant, the board of education of Marion township, Payette county, Ohio, and for answer to the petition of the plaintiff, says:
    ■ “It denies that the said J. V. Outright, clerk of said township, pursuant to any order br resolution of said board, issued in favor of the said William Clark, the warrant mentioned in the petition. Said defendant denies that it by any order, resolution or otherwise, authorized the said clerk to issue the said warrant. It denies that said order was ever delivered to ■ the said William Clark, or by him presented to the said relator, as such treasurer, or that the said relator ever paid the same to the said William Clark, or to any one else. It says that at the date of said warrant, said defendant was not indebted to the said Clark, nor was the said Clark asserting any demand or claim against it.
    “It denies that in paying to his successor in office the amount of school funds charged against him as such township treasurer, the said relator paid said sum of $197.76, or any other sum of his own funds; but on the contrary, the said defendant charges the fact to be that the said relator became a defaulter in his said office, and was by the township trustees of said township, about the -- — • day of-, 1878, removed from his said office, and one O. C. McCray was appointed his successor, and the said relator was unable to and did not pay to his said successor the amount so charged against him of school funds; and there still remains a balance $60.00 of said school funds so charged against the said relator as such treasurer, which has never been paid to the said successor, or any other treasurer of said township, by the said relator or any one for him.
    “Said defendant further says, it is true that at some time in the year 1892, the relator presented the said warrant to the defendant and requested the defendant to order its clerk to issue a warrant for the payment of the same, and the said defendant refused so to do; but it denies that the said relator ever presented any proof of payment of the same, or the failure of the said auditor to give credit; or that they admitted the facts, as stated in the petition, but the said defendant always denied the facts to be as claimed by the relator.
    ‘ ‘ Said defendant says the facts in regard to said order are as follows:
    “Prior to the 1st day of August, 1874, the said board of education of Marion township had instituted in the probate court of Payette county, Ohio, certain proceedings to condemn lands for schoolhouse site in said township. The awards made in said proceedings, together with the costs taxed to the said board therein, amounted to the said sum of $197.76. The said board had in said proceedings incurred an expense of $15.00 for the services of H. B. Maynard, an attorney, all of which was by said board apportioned between the' two school districts interested, and was paid by two orders, one for 103.43, and one for 109.33, which were on said first day of August, 1874, issued by the clerk, upon the order of said board, to said William Clark, who was at that time a member of said board, and said orders so issued to the said Clark were paid by the said relator, and the money was thereupon disbursed by the said Clark in payment of said award, costs and attorney fee; and said orders so paid by the said relator were duly credited to him in his annual settlement with the county auditor.
    “Afterward, on the 29th day of September, 1874, the said clerk, by mistake, issued another order for the amount of the said award and costs, being the warrant mentioned in the petition, but said warrant was not delivered to the said Clark, the payee named therein, and was not paid by the said relator, the mistake having been discovered in the meantime. But said warrant in some way unknown to the defendant came into the hands of the relator, and he has ever since retained the same, and never until the year 1892, claimed to have paid the same, or that he was entitled to credit for the same in his settlements with the county auditor.
    “The defendant says- the said board of education was never legally, equitably nor morally bound to pay to the relator the amount of said warrant, or any sum on account thereof. The said defendant further says: It is true that the general assembly of the state of Ohio, on the 16th day of February, 1893, passed the act mentioned in the petition; but it avers that said enactment commanding the levy of a tax, and the payment of a claim of the character of that of the relator, for which the defendant was not bound legally, equitably nor morally, as appears from the facts herein-before set out, was not a legal exercise of the taxing power of the said general assembly, said tax ordered to be levied not being- for any public purpose, and said act is for that reason wholly void and of no effect.
    “The defendant further says that at the time when the act of the general assembly, mentioned in the petition, was passed, the defendant denied and still denies the existence of the facts which would furnish the basis for the relator’s demand, or which would render the said defendant equitably and morally, if not legally bound to pay the same; but then, as now, asserted the facts to be as set out in this answer. The said general assembly, in said enactment, did not provide any means of determining the facts on which the demand of the relator is founded; either by the trial in court, before a board of audit constituted for that purpose, or otherwise; but said general assembly attempted, by said enactment, to pass upon the facts, to adjudge the said defendant liable on said demand, and to enforce payment by taxation, which action on the part of said general assembly was an attempt to exercise judicial and not legislative power, and said enactment is for that reason void, and can furnish no basis for the relief prayed for in the plaintiff’s petition.
    “Wherefore the said defendant says that a peremptory writ ought not to issue in this case, and it asks to be discharged and to recover its costs.”
    To this answer a demurrer was interposed by the relator and sustained by the court; whereupon a peremptory writ of mandamus was awarded commanding’ the board of education to levy a tax according to the provisions of the act under which the proceedings had been commenced.
    
      This action of the circuit court the board of education brings into this court of review.
    Hidy, Patton, Marchant & Nye Gregg, for plaintiff in error.
    
      John Logan, and Gardner & Rogers, for defendant in error.
   Bradbury, J.

the answer of the respondent, if true, shows that the demand of the relator has no foundation, whatever, in fact or justice; that the board of education was under no obligation, legal or moral, to pay the same, and that the fund to be raised by virtue of the act of the general assembly differed in no essential particular from a mere gratuity provided for his benefit. The de- ’ murrer admits the truth of the averments of the answer. In such a state of things the act must be held invalid unless the general assembly has authority to corhmand a local subdivision of the state to raise by taxation a fund for the benefit of an individual to whom it is under no obligation whatever, or where in such ease a dispute exists, the enacting of a statute, wherein the facts are declared to be as contended by the claimant, is .to be taken to be a legislative determination, of the dispute in his favor, binding upon the parties, so that the alleged debtor will be estopped from contesting the existence of the disputed facts in the courts of justice. If either of these alternatives is true, there is no constitutional limitation on the power of the legislature to levy exactions on the public as a whole, or on subdivisions of it for political or governmental purposes, for the benefit of favored individuals.

It may be true that the responsibility the individual members of the legislature are under to their constituents, or their sense of public duty is a sufficient guaranty against any great injustice in this direction, and, therefore, that unlimited power of taxation vested in that body would not be followed by vicious results generally, though it might be in exceptional instánces. However this might be, we, in the present inquiry, are more concerned in determining whether such unlimited power does exist than in the question of the wisdom and expediency of granting it.

Whatever power of taxation resides in the general assembly does so as an incident -of the general legislative authority delegated to that body by section 1 of article II, of the constitution of 1851. This court, holding in Western Union Telegraph Co. v. Mayer, Treas., 28 Ohio St., 521, that the provisions of article XII, of that instrument, though they relate to finance and taxation, are limitations upon, rather than grants of power of taxation ; and this, too, althoug’h section 4 of this statute expressly requires the general assembly to provide revenue to defray the yearly expenses of the state and pay the interest of its public debt. The power of taxation vested in the general assembly would have been just the same without, as with, this section.

That the authority to impose taxes is in ibs nature legislative, is established by the uniform current of judicial opinion. Cass Township v. Dillon, 16 Ohio St., 38; State ex rel. v. Harris, 17 Ohio St., 608; State ex rel. v. Wilkesville Township, 20 Ohio St., 288; State ex rel. v. Richland Township, Id., 362; State ex rel. v. Circleville, 20 Ohio St., 362; 25 Am. & Eng. Enc. of Law, 1871; Cooley on Taxation, 41-53.

That the legislative branch of the government is necessarily clothed with a broad discretion in determining the character, whether public or private, of the purpose for which funds may be raised by taxation, is equally well settled. Cooley on Taxation, 43; 25 Am. & Eng. Enc. of Law, 72; Cooley’s Constitutional Limitations, 599.

. In doubtful cases the courts should not interfere with the excise of this legislative discretion, and in all cases the legislative determination is entitled to great respect. Hanson v. Vernon, 27 Iowa, 28; Brodhead et al. v. Milwaukee, 19 Wis., 624; 25 Am. & Eng. Ency. of Law, 89, 90. That the power, however, is not unlimited is, we think, clearly established by the great weight of authority as well as of reason. State ex rel. v Commissioners, 35 Ohio St., 468.

The power of taxation is given to the general assembly as an indispensable means of providing for the public welfare, government could not be carried on without such power, and the power should be commensurate with the objects to be attained, but no good reason can be assigned for vesting it with power to take portions, large or small, of the property of one or a number of persons and granting it as a benevolence to another. Where a legislature attempts this, directly or indirectly, it passes beyond the bounds of its authority, and the parties injured may appeal to the courts for protection. The same constitution which grants the power of taxation to the general assembly recognizes the sanctity of private property, and declares that the courts shall be open for the redress of injuries.

This limitation on the legislative power of taxation is generally recognized by the authorities. The rule supported by a long array of adjudicated cases is laid down in 25 Am. & Eng. Ency. of Law, 74, as follows: “It is within the province of the courts, however, to determine in particular cases whether the extreme boundary of legislative power has been reached and passed.” In Weismer v. Village of Douglas, 64 N. Y., 99, Folger, J., says: “But to tax A and the others to raise money to pay over to B, is only a way of taking their property for that purpose. If A may of right resist this, as surely he may, how is he to make resistance effective and peaceable save through the courts, which are set to be his guardians ? How may the courts g’uard and aid him, unless they have the power, upon his complaint, to examine into the legislative act, and to determine whether the extreme boundary of legislative power has been reached and passed?”

It may be conceded that the general assembly may authorize one of the political subdivisions of the state to levy a tax to pay a demand not legally enforceable, but founded upon a moral consideration, or may even command that the levy shall be made for that purpose, and yet deny to it* the power to determine conclusively the existence of such obligation.

On the other hand it may be contended that if the power to levy a tax for a private purpose i s denied to it, it follows as a corollary that it had no power to determine the character of a demand, for if it had the latter power it could defeat thé limitation by falsely finding’ the claim to be founded, at least, on a moral consideration. We do not think the conclusion follows, for that would be to impute bad faith to a co-ordinate branch of the government which is not permissible.

We think, however, that whenever a contention arises between an individual and some public body respecting the existence of a claim against the latter, the controversy falls within the province of the judiciary. We do not deny the power of the general assembly to inquire into the merits of any claim sought to be asserted through its agency, before granting relief to the claimant by legislative action. Not only has it such authority, but its exercise should be carefully and rigidly observed.

Such • investigation, subsequent determination and resulting action, however, clo not estop the parties from appealing to those judicial tribunals of the country that have been established under our constitution and by it vested with the judicial power of the state, and by our laws provided with an appropriate.procedure to conduct such inquiries. Cooley’s Constitutional Limitations, 115, and cases cited. 3 Am. & Eng. Ency. of Law, 681.

If, in the ease under consideration, the relator has paid out money for the benefit of the respond-dent, for which, by some mistake, accident or error, he has never received credit, it is morally bound to make it good and this moral obligation is sufficient to support the statute in question. Lewis, Trustee v. McElvain, 16 Ohio, 355; Trustees v. McCaughy et al., 2 Ohio St., 152; Burgett et al. v. Norris, 25 Ohio St., 308; Rairden et al. v. Holden, Adm'r, 15 Ohio St., 207; Cass Township v. Dillon, 16 Ohio St., 38; Ohio ex. rel. Anderson v. Com'rs of Holmes Co., 17 Ohio St., 608; Board of Education v. McLandsborough, 36 Ohio St., 227; Cooley on Taxation, 127-8, State ex. rel. Bates v. Richland Township, 20 Ohio St., 362; State ex. rel. v. Hoffman, 35 Ohio St., 435; Warder v. Com'rs, 38 Ohio St., 643. Cooley’s Cons. Lim., 283. Where, however, the facts, out of which a moral (or legal) obligation is claimed to arise, are disputed, the contention falls within the province of the courts, under the distribution of governmental powers prescribed by our constitution. Sec. 1, of Article IV of the Constitution of 1851.

Judgment reversed and cause remanded with instructions to overrule the demurrer to the answer of the respondents.

Williams, J., not sitting.  