
    Edmondson, Auditor, et al. v. Deckebach.
    
      Contract by county with person—To search for concealed and unassessed taxable realty—Omitted from tax duplicate—Employed searcher to receive percentage of taxes recovered— Searcher not entitled to compensation for taxes collected—• In and for time subsequent to expiration of contract, when —Services rendered after life of contract gratuitous, when— Tax inquisitor—Law of contracts.
    
    1. A contract made by a county through its proper officers, employing a person to search for and discover concealed and unassessed taxable real estate that had been omitted from the assessment rolls and tax duplicate of that county, upon which property the taxes “are lawfully due and unpaid,” which contract provides that the person so employed is to receive for his services a certain percentage of the taxes actually recovered by the county treasurer from assessments on such omitted real estate and further provides that the compensation agreed upon “shall not be deemed due and owing until the taxes upon such omitted real estate have actually been paid into the county treasury,” does not authorize the payment : 'of any compensation to such person so employed out of . taxes levied and collected on this real estate at and for a time subsequent to the expiration of the term of the contract.
    2. Such contract, by its express terms, relates to and comprehends only the taxes' that then are lawfully due and unpaid upon such omitted real estate, and these taxes not only measure the amount of compensation to be paid him under this contract, but also provide the only fund out of which he can be paid for such .services.
    
      3. Where, under such contract, omitted property is discovered by the person so employed, and the taxes then due, with penalties, are placed upon the tax duplicate against this property, but these taxes and penalties are never actually paid into the county treasury, the reasons for failure to collect the same are unimportant. In such case, under the express terms of this contract, there is nothing due and owing to the person so employed for his services in securing these taxes and penalties to be placed upon the tax duplicate, and his right to compensation out of these taxes, had they been collected, can not be transferred to other taxes subsequently collected upon the same property.
    4. The right of the person so employed to compensation for his services, under the' terms of this contract, is confined to the services rendered by him during the life of the contract, and any' services rendered by him at a later time, by which he induced a subsequent auditor to make use of the facts discovered by him and place the property on the tax duplicate for a period of years long subsequent to the termination of the contract, must be held to be gratuitous and do not entitle him to be paid out of the taxes collected for these subsequent years for any services rendered during the term of the contract.
    (No. 13903
    Decided May 6, 1913.)
    Error to the Circuit Court of Hamilton county.
    On the 22nd day of January, 1912, George O. Deckebach filed in the superior court of Cincinnati a petition against the plaintiffs in error, averring, among other things, that on the 30th day of April, 1887, he entered into a contract with Herman Goesling, John Zumstein and William Anthony, who then constituted the board of county commissioners of Hamilton county, Fred Raine, auditor, and Frank Ratter man, treasurer, of said county, which contract is as follows:
    “This agreement made and entered into this thirtieth day of April, A. D. 1887, by and between Herman Goesling, John Zumstein’ and William Anthony, members of the board of county commissioners for Hamilton county,- Ohio; Frederick Raine, auditor, and Frank Ratterman, treasurer, of Hamilton county, Ohio (or a majority of said officers) of the first part, and George O. Deckebach of the city of Cincinnati, Ohio, of the second part.
    “Witnesseth, that by this contract the party of the second part is hereby employed and appointed by the party of the first part, to diligently search for and discover in a lawful manner, omitted, concealed and unassessed taxable real estate, that has been omitted from the assessment rolls and tax duplicates of Hamilton county, Ohio, and upon which said property the taxes are lawfully due and unpaid. Said party of the second part shall honestly and faithfully report his said discoveries to the county auditor, with such facts and evidence connected therewith that will enable said auditor to lawfully subject said real estate to taxation, and enable the treasurer to collect taxes thereon.
    “For and in consideration of the above services being done and performed by the party of the second part, as compensation therefor the party of the first part covenant and agree to pay said party of the second part, a sum equal to twenty-five per cent, of the taxes actually recovered by- the treasurer of Hamilton county, Ohio, from the assessment of such omitted real estate and by reason of the discoveries and reports of said party of the second part, provided that said sum of twenty-five per cent, nor any part thereof shall be deemed due and owing until the taxes on such omitted real estate aforésaid has actually been paid into the county treasury. Payments shall be made by the county commissioners upon the certificate of the county treasurer showing the taxes to have been paid into the treasury in compliance with this contract.
    ' “This contract shall continue and be in force for the term of two years from the second day of May, 1887.
    ’ “Witness our hands and seals in duplicate this thirtieth day of April, 1887.”
    That on or about the 15 th day of February, 1888, plaintiff, acting under this contract and in pursuance thereof, furnished to Fred Raine, auditor of Hamilton county, the facts and evidence necessary to authorize him to subject to taxation certain tracts of land in the city of Cincinnati, owned by Cincinnati but leased to private corporations and individuals and not used for public purposes,- and requested said auditor to charge the same as taxable, which property, prior to this date, had entirely escaped taxation and was omitted from the tax duplicate; that, thereupon, said Raine, auditor, did place said omitted property on the tax duplicate for the years 1881 to 1887, inclusive, charging said property and taxes against the lessees of said property, as in his judgment it was proper so to do, in accordance with the provisions of Section 2733, Revised Statutes; that, thereupon, Said lessees brought an action to restrain the county auditor and county treasurer from the collection of the taxes so charged;’ that, upon the trial of said cause • in the common pleas court of . Hamilton county, the injunction was dissolved and the petition dismissed; that an appeal was taken to the circuit court of that county, and that court entered a perpetual injunction against the auditor and treasurer enjoining the collection of these taxes; that this judgment of the circuit court was affirmed by the supreme court; that plaintiff employed counsel prior to the furnishing of the facts and evidence to the auditor to. examine and determine the question as to the taxability of said property, and also to take part in the preparation of the defense of the auditor and treasurer in the injunction suit in the common pleas, circuit and supreme courts, and furnish the facts and evidence necessary to sustain the contention of the county officials that said property was taxable.
    That after this case of Zumstein, Treasurer, v. The Consolidated Coal & Mining Company was decided by the supreme court, this plaintiff requested the then auditor of Hamilton county to use the facts and evidence furnished by him during the existence of his contract, and charge said property and taxes against the city of Cincinnati, and continued to urge upon each subsequent auditor so to charge said taxes against the city of Cincinnati, but the same was not done until the 13th day of January, 1905, when Eugene L. Lewis, auditor, at the request of the plaintiff, did charge said omitted property and taxes on the tax duplicate against the city of Cincinnati, using the facts and evidence furnished by plaintiff in 1888 to the then auditor of Hamilton • county; that this property was still under lease, six of the tenants being the same as in 1888; that in every lease made subsequent to February, 1888, except in one instance, the lease, provided for the payment of taxes, if any, by the lessee.
    That after said property had been so placed on the tax duplicates, the city of Cincinnati brought an action against the auditor and treasurer of Hamilton county to enjoin them from collecting the -same; that such proceedings were had in that cause in the common pleas, circuit and supreme courts- that resulted in a final- judgment refusing injunction and dismissing the city’s petition; that this plaintiff also employed counsel to urge upon the different auditors their right' and duty to charge said property and taxes against the city of Cincinnati, and employed counsel to take part in the preparation of the defense of the injunction suit in all of said courts; that plaintiff furnished the facts and evidence necessary in the hearing of said cases, being the same facts and’ evidence furnished by him to Raine, auditor, in 1888; that afterwards the city of Cincinnati paid to the county treasurer the taxes charged against this omitted property, amounting to $74,369.53; that, notwithstanding the payment of these taxes by the city of Cincinnati, the county auditor, treasurer and commissioners decline to recognize the right of plaintiff to compensation out of the same, in pursuance with the terms of the statute and his contract, and threaten to make distribution of the money paid in as taxes' among the different funds to which these taxes are to be apportioned without paying any part thereof to this plaintiff; that if they are permitted to make such distribution, this plaintiff will be remediless and totally unable to recover compensation due him under his contract.
    
      Plaintiff asks for an injunction restraining the county treasurer and auditor from distributing these taxes among the different funds without reserving twenty-five per cent, thereof to pay the compensation of this plaintiff, and that upon final hearing the county treasurer be ordered to certify to the county commissioners that the taxes have been paid into said treasury in compliance with the contract of said plaintiff; that the county commissioners be ordered to allow the claim of plaintiff, and for such other and further relief to which plaintiff may be entitled either in law or equity.-
    To this petition the defendants filed the following demurrer: First, that the pretended legislation; upon which the plaintiff’s action is based, is in-violation of Section 26 of Article II of the Constitution of the state of Ohio, and is unconstitutional and . void. Second, the petition does not state facts sufficient to constitute a cause of action against these defendants. This demurrer was overruled by the superior court of Cincinnati, and the defendants, not desiring to plead further, judgment was entered against them, as prayed in the petition. The defendants then prosecuted error iri the circuit court of Hámilton county, and that court affirmed the judgment of the superior court. This proceeding in error is now prosecuted in this court to reverse the judgments of both the circuit and superior courts.
    - Mr.. Thomas L. Pogue, prosecuting attorney, and Mr. John V. Campbell and Mr. Charles A. Groom, assistant prosecuting attorneys, for plaintiffs in error.
    
      
      Mr. Rufus B. Smith; Mr. John J. Weitzel and Mr. A. W. Bruck, for defendant in error.
   Donahue, J.

It is admitted that, the statute authorizing the county commissioners, auditor and treasurer to enter into this contract with plaintiff is unconstitutional, but it is insisted, on the part of defendant in error, that legislation of this character had heretofore been held constitutional by this court, that he relied upon such holding in making his' contract and performing the services thereunder, and that, therefore, his claim comes within the doctrine announced in the case of Thomas v. State, ex rel., 76 Ohio St., 341.

Our attention is called to the case of State, ex rel., v. Crites, Auditor, 48 Ohio St., 142, wherein the court held similar legislation constitutional. That case was decided February 24, 1891, and, as plaintiff’s contract was made long before that time, it can avail him but little in support of his contention.

The case of State, ex rel., v. Cappeller, 39 Ohio St., 207, is also cited by counsel for defendant in' error, and it does appear that in that case this court held Section 1 of the act of April 14, 1880 (77 O. L., 205), constitutional, but it does not appear that that act had anything to do with the question in that case. In the August settlement, 1.881, the county auditor sought to withhold from the state its share of costs and counsel fees in suits against the auditor and treasurer in relation to their duty in respect to the collection of taxes, and also certain amounts paid by the county to local collectors for collecting delinquent personal taxes for the years 1869 to 1876, inclusive. Section 1 of the act of April 14, 1880 (77 O. L., 205), applied only to persons employed to ascertain and furnish to .the county auditor facts, and evidence necessary to authorize him to subject to taxation property improperly omitted therefrom prior to the passage of that act, and did not relate, to the employment of persons to assist in the collection of delinquent taxes already charged on the tax duplicate.

The determination of the foregoing question, however, is wholly unimportant to the disposition of the case at bar. Conceding that the defendant in error, when he made and entered into this contract with the officials of Hamilton county, had the right to rely upon the judgment of this court in the case of State, ex rel., v. Cappeller, supra, and that, having done so, he should now be protected under the doctrine announced in the case of Thomas v. State, ex rel., 76 Ohio St., 341, it does not necessarily follow that this defendant in error is entitled to be paid the compensation provided for in his contract out of taxes other than the taxes due and unpaid at the time the services, were performed.

An analysis of this contract shows that plaintiff was employed and appointed by the commissioners, auditor and treasurer of Hamilton county “to diligently search for and discover in a lawful manner, omitted, concealed and unassessed taxable real estate that has been omitted from the assessment rolls and • tax duplicate of Hamilton county, Ohio, and upon which said property the taxes are lawfully due and unpaid.” Out of these taxes, when collected, he was to be paid twenty-five per cent, of the total amount actually recovered by the treasurer of Hamilton county, Ohio, from the assessment of such omitted real estate, and it was specially provided in the contract that “nor any part thereof shall be deemed due and owing until the taxes on such omitted real estate aforesaid have actually been paid into the county treasuryThis contract related to and comprehended only the conditions then existing in Hamilton county, and not with conditions that might exist in 1905. By the clear terms of the contract, the taxes out of which he was to be paid for his services were the taxes that were then lawfully due and unpaid, and not out of taxes that might become lawfully due and unpaid twenty years thereafter. He was not entitled to project this contract to include taxes that might accrue beyond the time limited for its termination. The contract was to continue for two years from the 2nd day of May, 1887, and if, by reason of his services, any of the taxes then lawfully due and unpaid upon omitted .real estate, or any taxes that might become lawfully due and unpaid upon omitted real estate during the term of his contract, should be paid into the county treasury, either before or after the expiration of his contract, he would be entitled out of those taxes, and no other, to be paid the compensation provided in the contract.

It is true that his petition does not state for what years the auditor, in 1905, placed this omitted real estate upon the tax duplicate, but, under the law, it could not have been any of the years preceding the date of the termination of this contract. According to the averments óf his petition, he furnished this information to the auditor on the 15th day of February, 1888, and out of whatever taxes were then lawfully due and unpaid on omitted real property prior to that date and were actually procured to be paid into the county treasury, he would be entitled by the terms of his contract to be compensated, but not out of the taxes paid upon that same property for a later period. Through a mistake of the taxing officer, this omitted real estate, discovered by defendant in error, was placed upon the tax duplicate in the names of persons who were not liable for the payment of the same, and by reason of this error, these taxes, which he had been instrumental in having placed upon the tax duplicate, never were collected and' never can be collected, and thóug'h the failure to collect the same was, probably, through no fault of his, yet under the terms of his contract, he was to be paid only out of these taxes, and cannot, therefore, be paid out of any other.

The services that he was to render the county, under this contract, so far as this property is concerned, ended with the disclosures he made to the auditor on the 5th day of February, 1888. He does aver in his petition that he furnished evidence in the trial of the several cases, that he employed counsel to assist in the litigation, and that, from time to time, he urged upon the various auditors to place this property upon the tax duplicate for years subsequent to 1888. These services were not contemplated in this contract. They were not the services for which he was to be paid. They were rendered long after the expiration of his contract. These services, so far as tne contract is concerned, were voluntary on his part, and cannot affect his legal rights under the contract. When' he furnished this information to the auditor in February, 1888, he was through with the transaction, except that when collected he was to be paid for this service out of the taxes that were then placed upon the tax duplicate by the county auditor in pursuance of the information furnished to him by defendant in error. That was the' only fund out of which he could be paid. The contract specifically so provided. That fund never came into the county treasury. These taxes never were collected and never will be. They are forever lost, not only to the county, but to all persons interested therein, and while it is unfortunate that this defendant in error should lose his compensation, yet it is equally unfortunate that the county must lose the seventy-five per cent, of these taxes that should have gone into the county treasury, and it would be still more unfortunate for the county if, in addition to this loss, it is compelled to pay out of the taxes accruing many years later the defendant in error’s proportion of the original loss.

It is urged that the taxes now collected by the county on this same property would never have been collected but for the services of this defendant in error. That is perhaps' true, and that was in contemplation at the time the contract was made. ” It was undoubtedly the intention of the parties to the contract that this defendant in error seek for and discover omitted real estate upon which taxes were then legally due and unpaid, that the taxes then legally due and unpaid should be placed upon the tax duplicate, and then out of these taxes, and no others, he should be paid for his services. But it was not the intention of either party to the contract that, after that time, notwithstanding the property should still continue upon the tax duplicate and still continue to be taxed, defendant in error should receive any part whatever of these future taxes. In other words, the whole contract, by its specific terms, related to the taxes then due and unpaid, and not to future taxes that might thereafter be charged against this property.

These facts all appearing from the petition, it follows that the superior court of Cincinnati erred in overruling the demurrer to the petition and that the circuit court also erred in affirming that judgment.

Judgment reversed and judgment for plaintiff in error.

Shaucic, C. J., Johnson, Wanamaker, Newman and Wilkin, JJ., concur.  