
    Carlisle v. Hetherington.
    
      Constitutional Law — Free Turnpike Loads.
    
    1. Where, upon each side of a proposed free turnpike road, unconnected therewith, and within less than two miles thereof, there runs an unimproved state or county road, and the road commissioners fix the bounds of the turnpike road to the full extent of one mile on each side of the same, section 4786 of the Bevised Statutes, so far as it provides that, in taxing territory between the turnpike road and the state or county roads, extra taxes shall only be levied upon such lands and personal property as lie within one half the distance of such roads, is not in conflict with section 2, of article 12, of the constitution, which, with certain specific exceptions, requires all real and personal property to be taxed by a uniform rule, and according to its true value in money.
    2. For the purpose of defraying the expenses of constructing and maintaining a free turnpike road, a special taxing district of one mile on each side of such road, may be established under the above section of the Revised Statutes, and the bounds of such district may be reduced, where an unimproved state or county road, unconnected with the turnpike road, runs upon either side thereof, within less than two miles.
    (Decided April 29, 1890.)
    Error to the Circuit Court of Highland county.
    The plaintiffs in error, George Carlisle, John Carlisle, sen., John Carlisle, jun., John Ballentine and G. M. Ballentine, filed their petition in the Court of Common Pleas of Plighland county, against E. O. Hetherington, as treasurer of said count}!-, which petition reads as follows:
    Plaintiffs say, “That the commissioners of Highland county, Ohio, assuming to act under and by virtue of title 7, chapter 7, of the Revised Statutes of Ohio, on the 5th day of February, A. D. 1883, authorized and granted the road improvement known as the Prospect Church and Gall’s Hill Free Turnpike No. 50.
    . “ That on the same day said county commissioners duly appointed Addison Gall, George Murphy and James A. Burnett as road commissioners therefor to do and perform all and singular the duties required of them by law.
    “ That said road commissioners duly qualified and entered upon the discharge of their duties, and on the 7th day of March, 1883, returned to the board of county commissioners their report and a map and profile of Free Turnpike No. 50, laying out and establishing said road and fixing and establishing the bounds of the same to the full extent of one mile on each side of said free turnpike, reporting to said county commissioners all of the real and personal property of these plaintiffs, among others as hereinafter set forth, within one mile on the north side of said Free Turnpike No. 50, as taxable for the construction and maintenance of the same.
    
      “ That said report was duly filed in the office of the Auditor of áaid county on the-day of-, A. D. 188-.
    “ That the commissioners of Highland county, Ohio, on the 7th day of March, A. D. 1883, made an order and duly entered it upon their journal, directing the auditor of Highland county, Ohio, to levy on the grand duplicate for the purpose of constructing and maintaining Free Turnpike No. 60, a tax upon the real and personal property of these plaintiffs, among others, within one mile on the north side of said Free Turnpike No. 60, of ten mills on the dollar for each and every year for the period of eight years.
    “ That afterward, to wit: on the 6th day of May, 1884, said county commissioners duly extended said levy three years at the rate of ten mills on the dollar for each and every jrnar of said extension, making the whole time of said levy heretofore made eleven years at the rate of ten mills on the dollar for each and every year of said eleven years. That the auditor thereupon, as aforesaid, ordered duly levied the aforesaid tax on the grand duplicate for the purpose of constructing and maintaining Free Turnpike No. 60 against all of the lands and personal property of these plaintiffs, among others, lying and being on the north side of Free Turnpike No. 60, and within one mile of the same.
    “ That said tax, levied as aforesaid, thereupon became a lien, and a- cloud upon the title of the plaintiffs to the aforesaid premises and property. Plaintiffs say, that there was a certain unimproved county road, leading from Hillsboro to Marshall, running on the north side of Free Turnpike No. 60, and within less than two miles of the same, and unconnected therewith.
    “ That said county road is now occupied by the road improvement known as the Marshall Free Turnpike No. 64. And plaintiffs say, that said road commissioners appointed to view, lay out and establish Free Turnpike No. 50, never reported to the county commissioners that the extra taxes levied within the established bounds of said Free Turnpike were insufficient to make a good and substantial road. That no petition to extend the bounds of Free Turnpike No. 50 was ever signed by a majority of the land owners, resident or non-resident owning lands, beyond half the distance from Free Turnpike No. 50 to the hereinbefore mentioned unconnected county road, and that the commissioners of Highland county never made an order to extend the bounds of said Free Turnpike No. 50, but that only the one order was ever made.
    “ Plaintiffs say that on the 5th day of March, 1887, certain persons, to wit: Mary J. Templin, Nancy Moore, Smith Moore, Chas. Templin, Ella Templin, Lewis Templin, Emily Templin and Stella Templin brought an action, No. 4519, in the Common Pleas Court of Highland county, Ohio, against J. M. Hiestand, as treasurer of Highland county, Ohio, to perpetually enjoin said J. M. Hiestand, as treasurer of Highland county, Ohio, and his successors in office, from collecting from said plaintiffs in said action, or their legal representatives, any and all extra taxes levied against their lands and personal property that lay beyond one half the distance from Free Turnpike No. 50 to the Hillsboro and Marshall County Road (then and now occupied by Free Turnpike No. 54), and within one mile of said Free Turnpike No. 50, for the purpose of constructing and maintaining said Free Turnpike No. 50.
    “And plaintiffs say that the aforesaid plaintiffs in the aforesaid action No. 4519, in their petition in said action, set out and averred, among other matters and things, that the aforesaid Hillsboro and. Marshall road was at the time of the laying out and establishment of Free Turnpike No. 50, an unimproved county road, running within less than two miles of Free Turnpike No. 50, as laid out and established, and was unconnected therewith. And plaintiffs say that the court upon a full and final hearing of said action No. 4519 found, among other matters and things, that the Hillsboro and Marshall road, at the time of the laying out and establishment of Free Turnpike No. 50, was an unimproved county road, running within less than two miles of Free Turnpike No. 50, and was unconnected therewith, and on the north side thereof, and that the said Mary J. Templin, Nancy Moore, Smith Moore, Chas. Templin, Ella Templin, Lewis Templin, Emily Templin and Stella Templin, under and by virtue of title 7, chapter 7 of the Revised Statutes of Ohio, were entitled to a division of territory between the Hillsboro and Marshall County Road (then and now occupied by the Marshall Free Turnpike No. 54), and said Free Turnpike No. 50, and that the extra taxes levied for the purpose of constructing and maintaining Free Turnpike No. 50, against all the lands and personal property of the said Mary J. Templin, Nancy Moore, Smith Moore, Charles Templin, Ella Templin, Lewis Templin, Emily Templin and Stella Templin, that lay beyond one half the distance from Free Turnpike No. 50 to said Hillsboro and Marshall County Road, were illegal and void. And the court decreed and ordered that the said J. M. Hiestand, as treasurer of Highland county, Ohio, and his successors in office, be perpetually enjoined from collecting from any of the aforesaid plaintiffs in the aforesaid action No. 4519, or their legal representatives, any and all extra taxes levied as aforesaid for the purpose of constructing and maintaining Free Turnpike No. 50, against any of their lands or personal property that lay beyond one half the distance, from Free Turnpike No. 50 to the aforesaid Hillsboro and Marshall County Road. Plaintiffs say that said decree and order of said court has never been set aside and is now of existing and binding force against E. O. Hetherington, as treasurer of Highland county, Ohio, and his successors in office. That under and by virtue of said decree and order of said Court of Common Pleas of Highland county, the said Mary J. Templin, Nancy Moore, Smith Moore, Chas. Templin, Ella Templin, Lewis Templin, Emily Templin and Stella Templin, and their legal representatives, are forever relieved from any and all liability for the payment of any and all extra taxes levied for the construction and maintenance of Free Turnpike No. 50 against their following described lands and personal property that were and are within one mile of said Free Turnpike No. 50, on the north side thereof, but beyond one half the distance from said Free Turnpike No. 50 to the Hillsboro and Marshall County Road (now occupied by Marshall Free Turnpike No. 54).
    “And plaintiffs say that the taxes levied as aforesaid against the lands and personal property of the aforesaid plaintiffs in civil action No. 4519, that are exempt from taxation by virtue of the aforesaid decree and order of the Court of Common Pleas of Highland county, Ohio, were levied against the following lands and personal property of the aforesaid plaintiffs, that lay and are within one mile of said Free Turnpike No. 50, and were and are within the reported bounds of said Free Turnpike No. 50, as reported by the road commissioners therefor to the board of county commissioners March 7, 1883.
    “Namely, against 89 acres and 120 poles of land belonging to the aforesaid plaintiff in action 4519, valued on the tax duplicate at $1,220 and the buildings thereon at $290, and against the personal property of Mary J. Templin, one of said plaintiffs, said 89 acres and 120 poles of land, being a part of a tract of 110 acres and 120. poles of land at the time of the making of the aforesaid decree of the Court of Common Pleas of Highland county, Ohio, standing on the tax duplicate in the name of N N. Templin.
    “ Plaintiffs say that there is a certain unimproved county road leading from the Furnace Road to the New Limestone State Road; that the same runs on the south side of, and within less than two miles of Free Turnpike No. 50, and is unconnected therewith.
    “And plaintiffs say that on the 1st day of February, 1888, Wm. E. Chrisman brought an action, No. 4705, in the Common Pleas Court of Highland county, Ohio, against J. M. Hiestand, as treasurer of Highland county, Ohio, to perpetually enjoin the said J. M. Hiestand as treasurer of Highland county, Ohio, and his successors in office, from collecting from him, the said Wm. E. Chrisman, or his legal representatives, any and all extra taxes levied for the purpose of constructing and maintaining Free Turnpike No. 50, against his lands and personal property that lay within one mile of Free Turnpike No. 50, but beyond' one half the distance from said Free Turnpike No. 50 to the unimproved county road leading from the Furnace Road to the New Limestone State Road. And said Wm. E. Chrisman in his petition in said action No. 4705, averred that the aforesaid road, leading from the Furnace Road to the New Limestone State Road, was an unimproved county road, running on the south side and within less than two miles of Free Turnpike No. 50, and was unconnected therewith, and plaintiffs say that the said court upon a full and final hearing of said action No. 4705, found, among other matters and things, that said road leading from the Furnace Road to the New Limestone State Road was an unimproved county road, running on the south side of Free Turnpike No. 50, within less than two miles of the same, and was unconnected therewith, and that the said Wm. E. Chris-man was under and by virtue of the provisions of title 7, chapter 7, of the Revised Statutes of Ohio, entitled to a division of territory between said county road, leading from the Furnace Road to the New Limestone State Road, and said Free Turnpike No. 50, and that the taxes levied for the purpose of constructing Free Turnpike No. 50, against the lands and personal property of Wm. E. Chrisman, lying and being beyond one half the distance from Free Turnpike No. 50 to the aforementioned county road, were illegal and void.
    “ And said court decreed and ordered that the said J. M. Hiestand, as treasurer of Highland county, Ohio, and his successors in office, be perpetually enjoined from collecting from said Wm. E. Chrisman, or his legal representatives, any and all extra taxes levied for the purpose of constructing and maintaining Free Turnpike No. 50, against his lands and personal property lying and being beyond one half the distance from Free Turnpike No. 50, to the aforementioned county road leading from the Furnace Road, to the New Limestone Road, namely, on all the lands and personal property of the said Wm. E. Chrisman, against which taxes were levied as aforesaid for the purpose of constructing and maintaining Free Turnpike No. 50. And plaintiffs say that the extra taxes levied as aforesaid for the aforesaid purpose, were levied against the lands and personal property of Wm. E. Chrisman, among others, that were and are within one mile of said Free Turnpike No. 50, on the south side thereof and were reported as within the bounds of said Free Turnpike by the road commissioners therefor.
    “ And plaintiffs say that the said Wm. E. Chrisman and his legal representatives, under and by virtue of said decree and order of the court- of common pleas in case No. 4705, are forever relieved from any and all liability for taxes levied for the purpose of constructing and maintaining Free Turnpike No. 50, against his lands and personal property aforesaid.
    “ Plaintiffs say, that said decree and order of said court in action No. 4705, has never been set aside, and is now of existing and binding force against E. O. Hetherington, as treasurer of Highland county, Ohio, and his successors in office. Plaintiffs say that there was reported for taxation and the levy made for the aforesaid purpose on their lands and personal property as follows: On the lands of George Carlisle on 6 acres and 30 poles of land in Massie’s survey 6401, and on 19 acres of land in Massie’s survey 6401. On the lands and personal property of John Carlisle, sen., on 111 acres in Means’ surveys 2739 and 3015, and on 92 acres and 80 poles in Means’ surveys 2739 and 3015, and on 100 acres in H. Massie’s survey 6041, and on 30 acres in J. Clemson’s survey 2769, and on personal property valued at $4,865. On the personal property of John Carlisle, jun., valued at $2,522. On the lands and personal property of John Ballentine on 162 acres in J. Clemson’s survey 2769, and on 14 acres in J. Clemson’s survey 2759, and on his personal property valued at $1,044, and on the personal property of G. M. Ballentine valued at $1,651.
    “ Plaintiffs say that they own no lands or personal property subject to taxation for the purpose of constructing and maintaining Free Turnpike No. 50, and that all extra taxes levied as aforesaid for the aforesaid purpose against their aforesaid lands and personal property are illegal and void. Plaintiffs say that they never signed any petition for said' Free Turnpike.
    “ And plaintiffs say that the uniform operation of the provisions of title 7, chapter 7, of the Revised Statutes of Ohio, in their application to the laying out, establishment and construction of Free Turnpike No. 50, and to the levying of extra taxes for constructing and maintaining the same, in this instance is broken, and that the extra taxes levied as aforesaid, for the aforesaid purpose, within the reported hounds of said Free Turnpike No. 50, are not levied by an uniform rule, as required by sec. 2, article 12 of the constitution of the state of Ohio, and that the application, in this instance, of the provisions of title 7, chapter 7, of the Revised Statutes of Ohio, to the laying out, establishment and construction of Free Turnpike No. 50, and to the levying of extra taxes for constructing and maintaining the same, is in violation of the requirements of sec. 2, article 12, of the constitution of the state of Ohio, that requires that all taxation be by an uniform rule, and is unconstitutional and void. Plaintiffs say that E. O. Hetherington was duly elected as treasurer of Highland county, Ohio, and is now the duly qualified and acting treasurer of said Highland county, and that the grand duplicate for the years 1887 and 1888 are now in his hands as treasurer as aforesaid, wherefore he is made party defendant.
    “ That the said E. O. Hetherington, as treasurer as aforesaid, threatens and will proceed to collect the extra taxes levied as aforesaid, for the aforesaid purpose, against the aforesaid lands and personal property of these plaintiffs, unless restrained by lawful authority.
    “And plaintiffs say that the collection of the aforesaid extra taxes levied for the aforesaid purpose, against their aforesaid lands and personal property from these plaintiffs, or any of them, during any or all the years, of the time of the aforesaid levy and extensions heretofore made, or that may hereafter be made, will work great and irreparable injury to these plaintiffs, and that they are without remedy at law.
    “ Wherefore plaintiffs pray that the said E. O. Hetherington, as treasurer of Highland county, Ohio, be temporarity restained from collecting from these plaintiffs, or any of them, any and all extra taxes levied as aforesaid for the aforesaid purpose, against any and all of their aforesaid lands and personal property.
    “ And that upon a final hearing of this action, E. O. Hetherington, as treasurer of Highland county, Ohio, and his successors in office, be perpetually enjoined from collecting from these plaintiffs, or any of them, or their legal representatives, any and all extra taxes, heretofore, or that may be hereafter levied against any of their aforesaid lands and personal property for the purpose of constructing, maintaining or repairing Free Turnpike No. 50, and for all further and proper relief, and their costs in this action.”
    To this petition there was a general demurrer. The demurrer was sustained, and the plaintiffs not desiring to plead further, judgment was rendered for the defendant. The circuit court, on petition in error, affirmed the judgment of the court of common pleas, and this proceeding is instituted to reverse such judgment of affirmance.
    
      Brock & Lytle, for plaintiffs in error.
    
      Newby & Morrow, for defendant in error.
   Dickman, J.

The road commissioners, in laying out and establishing Free Turnpike No. 50, established the bounds of the same to the full extent of one mile on each side thereof, and reported to the county commissioners all the real and personal property of the plaintiffs, among others, within one mile on the north side of the free turnpike as taxable for its construction and maintenance. On the north side of the free turnpike, and unconnected therewith, there was an unimproved county road, within less than two miles thereof; and on the south side of the free turnpike, within less than two miles thereof, and unconnected therewith, there was also an unimproved county road. For the purpose of constructing and maintaining the free turnpike, the auditor of the county, in compliance with an order of the county commissioners, levied a tax on the grand duplicate, against all the lands and personal property of the plaintiffs, among others, lying and being on the north side of the free turnpike, and within one mile of the same.

The tax was levied under the law regulating “ one mile assessment pikes,” embraced in sections 4774 to 4828 inclusive, of the Revised Statutes, section 4786 of which provides as follows : “ Extra taxes,, when levied as hereinbefore provided, shall be on real and personal property within one mile on each side of the free turnpike road, except.....that when any road improvement, or free turnpike road, built and completed under any of the turnpike laws, begins or terminates in the proposed free turnpike, or where any of such roads, or any toll-road, or unimproved state or county road, being unconnected with the same, runs upon either side of such proposed road, within less than two miles, then the taxes shall only be levied upon such lands and personal property as lie within one half the distance of such roads.”

It is contended that, by this section of the statutes, a special taxing district was created, of one mile on each side of the free turnpike road, and for the purpose of constructing and maintaining such road, extra taxes should be levied, if at all, on all- the real and personal property within the district; but, as the section provides that where an unimproved county road, unconnected with the turnpike road, runs upon either side thereof within less than two miles, such lands and personal property as lie beyond one half the distance of such roads, shall be exempt from taxation, though within the one mile taxing district; and as, by reason of such provision, all property in the taxing district is not taxed by a uniform rule, according to its true value in money, section 4786, in its application and operation in the present case, is in violation of section 2, of article 12, of the constitution. In this section, the constitution recognizes and enforces the principle of equality and uniformity in the imposition of public burdens, and when a taxing district is carved out for defraying the cost and expenses of a local improvement, all property within the district must be taxed by a uniform rule, except the specific property which the section provides may, by general laws, be exempted, from taxation.

What territory shall constitute the district for the purpose of taxation, may be provided for by the general assembly, in the exercise of its legislative power. It has been decided in Bowles v. The State, 37 Ohio St. 35, that the legislature, in the exercise of the general power of taxation, may create a special taxing district without regard to municipal or political subdivisions of the state, and may levy a tax on all property within such district, by a uniform rule, according to its true value in money, for the purpose of defraying the expenses of constructing and maintaining public roads therein.

The general assembly, by general law, in section 4786 of the Revised Statutes, has provided, that when extra taxes are levied for the purpose of constructing, improving and repairing a free turnpike road, the levy shall be on real and personal property within one mile on each side of such road, except that where an unimproved state or county road, unconnected with the same, runs upon either side of the proposed free turnpike road, within less than two miles, the taxes shall only be levied upon such lands and personal property as lie within one half the distance of such roads. The statute thus-provides for a taxing district of one mile in width on each side, coterminous with the turnpike, but subject to be contracted in width, wherever along the line of the turnpike an unconnected and unimproved state or county road runs within less than two miles. The language of the statute describes the taxing district, in designating the distance within which extra taxes are to be levied on lands on each side of the turnpike, and marks out the limits of such district where an unimproved state or county road runs at less than a certain distance.

The plaintiffs’ action rests upon the ground that the entire boundaries of the taxing district must embrace one mile of territory on each side of the free turnpike, and that the section of the statute under consideration, instead of narrowing the bounds of the district, where an unimproved state or county road runs within less than two miles, exempts from taxation, the lands and personal property lying beyond one half the distance between the county road and turnpike, although actually lying within the one mile taxing district. But in laying out and establishing a free turnpike road, the taxing district, in our view, may extend one mile on each side thereof, or a mile on one side and less than that distance on the other side; or on the same side of the turnpike, the limits of the district may be one mile at one point, and less than one mile at another point, as the conditions are found to exist which are provided for in the statute. The exemptions specified in section 4786, supra, are designed, we think, to contract the bounds of the taxing district according to the facts and circumstances of the case, and not to exclude from taxation any real or personal property that may lie within a district constituted in accordance with the statute. The road commissioners having exceeded their power, by extending the limits of the taxing district, and bringing within its bounds lands and personal property which could not be properly included therein, the want of uniformity in levying the extra tax within the district must be referred, not to an infirmity of the statute, as being repugnant to the constitution, but rather to a failure to comply with the requirements of the statute.

In section 4779 of the Revised Statutes, there is a proviso that the words “ bounds ’ of the road,” wherever used in the chapter entitled “ One-Mile Assessment Pikes,” shall be held to include so much land on either side of such road as may be charged with the extra tax levied for its construction and maintenance. The bounds of the road are thus made to represent the limits of the taxing district. But, section 4787 of the Revised Statutes provides : “ If the road commissioners report to the county commissioners that the extra taxes levied' within the bounds of the road are insufficient to make a good and substantial road, the county commissioners, if in their opinion the public interest requires it, may order the road commissioners to extend the bounds of the free turnpike road to one mile on either side of the same, when a majority of the resident 'land owners owning land within the bounds 'of the territory proposed to be extended sign a petition therefor.” It is evident that this language of the section has reference to a taxing district of which a portion, at least, may be less than one mile in width on one or both sides of the free turnpike, but which may be enlarged to. the width of one mile, when the extra taxes levied within the bounds of the road prove inadequate to make a good and substantial road.

At the time of the laying out and establishment of Free Turnpike No. 50, there was on the north side of the same, the unimproved county road leading from Hillsboro to Marshall ; and on the south side thereof; the unimproved county road leading from the Furnace Road to the New Limestone State Road — each county road being unconnected with, and within less than two miles of the turnpike. The bounds of the turnpike, or taxing district created for its construction and maintenance, could not be extended beyond one half of the distance of the turnpike from the respective county roads, except under the exigency stated in the statute. The lands and personal property that lay beyond one half the distance, not being within the boundaries of the turnpike, would not be taxable as property in the district, by the uniform rule of the constitution.

The decision in Fields v. Commissioners of Highland County, 36 Ohio St. 476, has been "cited in behalf of the plaintiffs. That case is not in conflict with, but rather in confirmation of the views which we have herein advanced. It was an action to enjoin the commissioners of Highland county from taking further steps towards the establishing of certain turnpike roads, under the act of March 20, 1879, entitled “An act to authorize the commissioners of certain counties to locate and construct turnpike roads.” Revised Statutes, §§ 8047-8057 inclusive. For the purpose of aiding in the construction of such roads, section 6 of the act authorized an additional levy annually, of not more than two mills on the dollar of valuation, on the grand duplicate of taxable property in the county, from year to year, until the completion of the road or roads. The proposed establishment of the roads in controversy was for county purposes, and the taxing district was therefore bounded by the county lines. Cooley on Tax., 2d ed., 141. It was contended that a large number of acres of land in the county had already been assessed for the construction of a large number of turnpikes in the county, and should, by virtue of the provisions of section 7 of the act, be exempt from bearing any of the burden of taxation necessary to the construction of the roads about to be located and established. The validity of the act was assailed, and was held to be in violation of the constitution, because lands in the same taxing district were, by the act, relieved from taxation, by reason of having been previously assessed. In the opinion, Boynton, C. J., says: “In our opinion it is clearly in conflict with section 2, article 12, of the constitution, which, with certain specific exceptions, requires all real and personal property to be taxed by a uniform rule, and according to its true value in money. ‘ Equality of burden is the principle of the constitution.’ There is to be ‘no rule that exempts some property and casts the burden of government upon the rest.’ Exchange Bank of Columbus v. Hine, 3 Ohio St. 43. This, section 7 of the act expressly does. Lands before assessed for similar improvements are exempted from taxation to the extent of the assessment previously made, and the burden from which such lands are thus relieved, is cast on the remaining property of the county.”

Finding no error in the record, the judgment of the circuit court is accordingly

Affirmed.  