
    TAX LEVIES UNDER. AN UNCONSTITUTIONAL LAW.
    [Circuit Court of Lucas County.]
    C. W. F. Kirkley v. Peter Parker, Treasurer of Lucas County, Ohio.
    Decided, March 11, 1905.
    
      Taxation — Levy Under an Unconstitutional Law — Not Yet Declared Unconstitutional — Not Enforceable, When.
    
    The fact that a law under which a tax was levied had not been declared unconstitutional at the time the levy was made, will not save the levy fronl injunction against its collection, when it does not appear that contracts have been entered into on the faith thereof.
    Haynes, J.; Hull, J., and Parker, J., concur.
   A petition in error is filed in this case for the purpose of reversing.a judgment of the court of common pleas in a matter of certain alleged illegal taxes. The facts of the ease are so well stated in the brief of the plaintiff in error that I quote from it:

“In the court of common pleas the plaintiff in error, who was plaintiff below, brought an action to restrain the county treasurer from collecting part (to-wit, $214.10) of the taxes standing charged on the tax duplicate of 1904 against Lot 224, Port Lawrence Division, the plaintiff admitting that the balance (to-wit, $2,033.07) was legal and due. The court below restrained the treasurer from collecting $155.87 of the $214.10, but refused to enjoin the collection of the balance, $58.23. Because of the refusal to enjoin this small sum ($58.23) the plaintiff prosecutes error here.

“It appears from the petition that in June, 1903, the county commissioners levied’for general county purposes 2.37 mills on each dollar of taxable valuation. Under the Lucas county clause of Section 2833 (as it stood prior to the amendment of April 23, 1904, 97 Ohio Laws, 308), the commissioners were authorized to levy not to exceed 5 mills for all county purposes; but under the general clause of that section they were authorized to levy only 7-10 of a mill in counties having a taxable valuation between $70,000,000 and $100,000,000, of which Lucas county is one. The rate actually levied (2.37 mills) exceeded the rate authorized by the general clause of Section 2823 (7-10 of a mill) by 1.67 mills which on a valuation of $34,870 (the valuation of the property in question) would amount to $58.23, the amount in controversy before this court. In March, 1903, in the case of Yost v. Maumee Brewery Co., 20 Circuit Court, 26, this court held the Lucas county clause of Section 2823 to be constitutional. This decision was affirmed without report by the Supreme Court June 5th, 1900 (63 Ohio State, 563); but January 19th, 1904, after the levy by the county commissioners in the case at bar (June, 1903), in the case of Pump v. Commissioners of Lucas County, 69 Ohio State, 448, the Supreme Court held the Lucas county clause of Section 2823 to be unconstitutional and that Lucas county must be governed by the general clause of that section. The court below applied the doctrine of stare decisis to the case at bar and held the law levied for county purposes to be valid.”

The case stands upon the petition; there was no answer filed in the court of common pleas the facts were tafeen to be admitted.

It was urged by counsel on behalf of the county commissioners that we ought not to interfere with this tax because at the time or before the tax was levied1, while this suit was pending in the Supreme Court, an application was made to that court for a temporary injunction, prior to June of that year, prior to the time at which the tax levy was made by the county commissioners, and that that court overruled the motion without announcing any decision upon the point. That subsequently, and after the tax was levied, the Supreme Court in that same case decided that the law was unconstitutional and invalid. It is claimed by counsel that, relying upon the fact that the Supreme Court overruled the motion for a temporary injunction, the commissioners in this action proceeded to make the levy although the ease was then pending in the Supreme Court. There is no contention but what the law has been declared unconstitutional by tlie Supreme Court; the only contention is that it is not applicable to an assessment or to levies which were made prior to the decision of the Supreme Court, as is the case here.

'The court below, as we understand it, proceeded in the decision upon the general idea that by reason of the fact that the law had not been declared unconstitutional and had not been so held by the Supreme Court at the time the levy was made, that therefore the court ought not to interfere in the way of injunction to restrain the collection of this tax. But we are unable to agree with the court in that respect. We have examined the cases which have been cited by counsel for the plaintiff and we think that the decision of the Supreme Court of this state, following the decision of the 'Supreme Court of the United States and of other states limiting the cases where the court will refuse to interfere to cases where there have been contracts entered into upon the faith of the statutes and the decisions of the Supreme Court of the state under them. To that effect we think is the case of Lewis v. Symmes, 61 O. S., 471; Shoemaker v. Cincinnati, 61 O. S., 603, and 69 O. S., 209, and counsel have also cited a very brief statement of the law from the 26 Encyclopædia of Law, page 179.

B. A. Hayes, for plaintiff in error.

W. G. Tilery and J. S. Martin, for defendant in error.

Now there is no answer filed in this ease and it nowhere appears in the record of the case that there had been any contracts whatever entered into upon the faith of this tax when it was levied, or the decision of the Supreme 'Court made under it; it is in fact a levy made for the general funds of the county and we are” clear in our minds that the rule of law which they seek to apply has no application to a ease of this kind which would call upon us to disturb the levies that have been made by the authorities under the statutes of the state. We have once expressed ourselves upon this law, but as we understand it we we are now following the decision of the Supreme Court of this state, as we are required to do, and under those decisions we think the plaintiff in error is entitled to have this part of the law declared to be unconstitutional, illegal and void and the collection enjoined, and for that reason the judgment of the court of common pleas will be reversed and the cause remanded to that court for further action.  