
    The State of Ohio, on relation of the Sister Superior of the Dayton Branch of the Sisters of Notre Dame, v. The Board of Commissioners of Montgomery County.
    Under section 20 of the act prescribing the duties of county auditors, as amended January 16,1873 (70 Ohio L. 10 and 11), the duty of the board of county commissioners to refund taxes erroneously charged and collected, is imposed only where the error was in the name of the person charged, in the description of the property, or in the amount of the tax. The question, whether the property was within the description of property exempt from taxation, is not, under this section, submitted to the judgment of the county auditor, or of the board of county commissioners.
    Petition for a writ of mandamus.
    
      For the purposes of this report the facts of the ease maybe stated thus: For five years past, taxes were annually levied and collected from the relator on certain real property, situate in Montgomery county, which, as a pure public-, charity, was not subject to taxation under the statute.
    Afterward, on application by relator, the defendants refused to order the county auditor to draw his warrant-upon the. county treasury, in favor of relator, for the-amount of taxes so paid, and now a writ of mandamus is-prayed for, commanding them to do so.
    The relator relies upon section 20 of the “ act prescribing-the duties of county auditors,” as amended January 16,. 1873 (70 Ohio L. 10 and 11), which provides : “ The county auditor shall, from time to time, correct all errors which he shall discover in his duplicate, either in the name of the-person charged with taxes or assessments, the description of lands or-other property, or in the amount of such tax or assessment; and when the auditor is satisfied, after having-delivered the duplicate to the county treasurer for collection, that'any tax or assessment thereon, or any part thereof, has been erroneously charged, he may give the person-charged therewith á certificate to that effect, to be presented to said treasurer, who shall deduct the amount from said tax or assessment; and if, at any time, the county auditor shall discover that any erroneous taxes or assessments have been charged and collected in previous years, he shall call the attention of the commissioners thereto at any regular or special session of the board, and if the county commissioners shall find that taxes and assessments have been so er-l'oneously charged and collected, they shall order the county auditor to draw his warraut on the county treasurer’, in favor of the person or pex’soxxs paying the same, for.the full amount of the taxes or assessments so erronously ehai’ged and collected;' : . . Provided no taxes or assessments-
    shall be so refunded, except such as shall have been so erroneously charged and collected in the five years next prior to-the discovex’y thereof by the county auditor.”
    
      
      Q-eorge W. Souk and Yeatman Somberger, for plaintiff.
    
      James G. Young, for defendant.
   By the Court.

Under the section of the statute above quoted, the commissioners of a county are not authorized to order the auditor to draw his order upon the treasury to refund taxes erroneously collected, unless the error be such as would require correction by the auditor himself, if discovered by him before payment of the taxes: namely, for error, “ either in the name of the person charged with, taxes or assessments, the description of the lands or other property, or in the amount of such tax or assessment.” The errors named in the statute are clerical merely, but the error complained of by the relator is fundamental. The question, whether specified property is or is not subject .to taxation, was not, by this section of the statute, submitted to the judgment of either the auditor of the county or the board of county commissioners.

Writ refused.  