
    Board of County Commissioners of Hamilton County v. Arnold.
    
      Collection of taxes — County commissioners no jurisdiction to authorize county treasurer to collect delinquent taxes — Section $858, Rev. Stat. — Delinquent list must be publicly read —Compensation of collectors.
    
    1. County commissioners have no jurisdiction to authorize a county treasurer to employ a collector to collect personal delinquent taxes under section 2858, Revised Statutes, until they first cause the delinquent list to be publicly read as provided in that section.
    2. An appointment of such collector can be authorized only for the collection of the whole or any part of the delinquent list which has been caused to be so publicly read.
    
      3. There is no authority under said section 2858, to employ a collector to collect future delinquent lists.
    4. Under said section 2858, the county commissioners must definitely prescribe the compensation of such collectors, before collections are made; and that duty is not performed by prescribing that the compensation shall not exceed a certain amount, or a certain per centum.
    (Decided January 21, 1902.)
    Error to the Circuit Court of Hamilton county.
    The defendant in error presented a claim for $1,582.52 to the commissioners for allowance, for collection of delinquent chattel taxes, from April 30, to May 11, 1900, being twenty-five per cent, commission on $6,330.09 collected. The delinquent taxes collected were all on the delinquent list of 1898 and later years, except $11.47 on the list of 1897 and earlier list.
    The following correspondence and resolution show the only appointment of Mr. Arnold as collector of delinquent personal taxes:
    “Cincinnati, O., November 25, 1898.
    To the Honorable the Board of County Commissioner's, Hamilton County, Ohio.
    Gentlemen — I desire to appoint special collector of delinquent chattel taxes, and beg to request that your honorable board delegate such power to me, as provided in section 2858, Revised Statutes of Ohio, and that such authority be in conformity with previous resolutions of your board, as to compensation, etc., for the performance of duty contemplated.
    Very respectfully,
    Tilden R. French, Treasurer of Hamilton County, Ohio.
    Mr. Breen moved, that the communication be ordered received and filed.
    Linnemann, aye; Breen, aye; Korb, aye.
    RESOLUTION.
    Be and it is hereby resolved, That under the provisions of section 2858 of the Revised Statutes of Ohio, the cofinty' treasurer of Hamilton county, Ohio, is hereby authorized and empowered to employ a collector or collectors for the collection of delinquent personal taxes, such authority to apply only to personal taxes delinquent in any year or years other than a current tax year, which delinquent taxes shall appear on the auditor’s supplement duplicate of delinquent personal taxes, and the compensation to be allowed such collector or collectors, including any or all expenses incident to such collections, shall not exceed twenty-five per centum of the amount so collected and turned into the county treasury, such compensation to be paid from the county fund, upon approval by this board.
    Mr. Breen moved to adopt the resolution.
    Linnemann, no; Breen, aye; Korb, aye.”
    “Cincinnati, December 17, 1898.
    Hon. Board of County Commissioners, Hamilton County, Ohio.
    Gentlemen — I have the honor to inform you that I have appointed Chas. B. Arnold, to be collector of delinquent personal taxes for this office under authority provided in your resolution of November 26,1898, and approved by the Hamilton county board of control, November 29,1898, and that his compensation is fixed at a sum equal to twenty-five (25) per cent, of the collections made by him and paid into the county treasury.
    Very respectfully,
    Tilden B. Fbench, Treasurer of Hamilton County, Ohio.
    And Mr. Breen moved — that the communication from the county treasurer be received and filed.
    Linnemann, no; Breen, aye; Korb, aye.”
    
      “Office of the Board of Control, Hamilton county.
    Cincinnati, O.,-, 190-.
    The following appears of record in board of control minutes of November 29, 1898:
    On motion of Mr. Engelke, seconded by Mr. Wabnitz, a resolution empowering and authorizing the treasurer of Hamilton County, to employ a collector for the collection of delinquent personal taxes, delinquent in any year or years other than the current year, at a compensation not to exceed twenty-five per centum of the amount so collected and turned into the county treasury, including any or all expenses incident to such collections, was concurred in.
    On concurrence: .
    Mr. Weber, yea; Mr. Engelke, yea; Mr. Wabnitz, yea; Mr. Bauer, yea.”
    “County Treasurer’s Office, Hamilton County, Ohio.
    Cincinnati, November 30, 1898.
    Mr. Charles B. Arnold,
    Sir — By virtue of a resolution passed by the board of county commissioners on November 26, 1898, and approved by the county board of control on November 29, 1898 (such resolution being in conformity with section2858, Revised Statutes of Ohio), you are hereby appointed “collector of delinquent chattel taxes” for this office, at the compensation provided in said resolution (namely, an amount equal to 25 per cent, of collections made by you and paid into the county treasury). Your employment is from this date, and during my term of office as county treasurer.
    Tilden R. French,
    Treasurer of Hamilton County, Ohio.”
    
      The board of county commissioners referred the claim of Mr. Arnold to the county solicitor, and his opinion being adverse, the board rejected the claim. Mr. Arnold appealed the matter to the court of common pleas, and his claim was there allowed. The circuit court affirmed the judgment, and thereupon the matter was brought here -by the commissioners, seeking to reverse the judgments of the courts below, and the dismissal of Mr. Arnold’s claim.
    
      Gideon G. Wilson, county solicitor.
    
      Ottoay J. Gosgrave and Oliver B. Jones, assistant county solicitors, for plaintiff in error.
    
      Frank F. Dinsmore and Charles C. Benedict, for defendant in error.
   By the Court :

Said section 2858, Revised Statutes under and by virtue of'which Mr. Arnold claims his appointment, reads as follows:

“The county commissioners shall, at their September session annually, cause the list of persons delinquent in the payment on personal property to be publicly read; and they may at any time, if they deem the same necessary, authorize the treasurer to employ collectors to collect the same or any part thereof, prescribing the compensation of such collectors which shall be paid out of the county treasury; and all such allowances shall be apportioned ratably by the county auditor among all the funds entitled to share in the distribution of such taxes.”

The list in this section spoken of is the delinquent list; and the section is mandatory in so far as causing that list to be publicly read. The reading is for the information of the county commissioners, to enable them to judge and determine, from hearing the list read, whether they deem it necessary to authorize the treasurer to employ collectors to collect the list or any part thereof, and to prescribe the proper and reasonable compensation to be paid to such collectors for their services. Without hearing the delinquent list read, they would have no information upon which to determine whether they deem it necessary to authorize the treasurer to employ such collectors; neither could they determine whether the whole list should be collected by collectors, or only a part thereof, and the remainder by the treasurer, as by other statutes provided; nor could they determine Avithout hearing the list read, AA'liat compensation should .reasonably be paid for the collections to be made. So that until the delinquent list is caused to be read, the commissioners can take no step toAvard authorizing the appointment of a collector, and any step taken by them before the reading of such list is absolutely void. The causing of the list to be publicly read is a condition precedent to authorizing the treasurer to employ such collector. It is the manner provided by statute for bringing the question of appointing collectors before them for consideration and determination. Statutes enacted for the protection of the public revenues, are usually not merely directory, but mandatory.

When the delinquent list has been so publicly read, the commissioners may at any time Avhen they deem it necessary, authorize the treasurer to employ collectors to collect the same, or any part thereof; that is, to coliect that list which has been so read, but such employment Avould ho.ld good for that list only and Avould not extend to the next delinquent list. Each delinquent list must be read and an employment made to collect the same, but there can be no employment of collectors to collect future lists. The employment of such collectors cannot be turned into an office to be held to the end of the treasurer’s term, or for any definite period. His employment is to collect the delinquent list Avhich has been read, or some part thereof, and Avhen that is done, his.employment ends.

This section of the statute provides that the commissioners shall prescribe the compensation of the collectors; and the provision is not complied Avith AA’hen the commissioners prescribe that it shall not exceed a certain sum, or certain per centum. They are required to fix definitely and exactly Avhat compensation the collector shall receive. It is their judgment that is to be exercised, and not the judgment o-f the treasurer, though limited by fixed bounds.

In this case it is conceded that the commissioners did not cause the delinquent list to be read. They therefore had no jurisdiction to authorize the treasurer to employ a collector, and the pretended employment of Mr. Arnold Avas void, not only as to the collection of the delinquent list of 1897, but also as to that of the succeeding year '1898, in Avhich substantially all the collections in question were made. It Avas also void for the further reason that the commissioners failed to prescribe his compensation. It cannot be tolerated that he make his collections, and the commissioners fix and alloAV his compensation thereafter. The compensation must be prescribed by the commissioners before the collections are made. The statute not having been complied Avith, it follows that Mr. Arnold is not entitled to receive any money out of any public treasury for the collections by him made, and the commissioners properly rejected his claim. The court of common pleas erred in rendering judgment, in his favor, and the circuit court erred in affirming the common pleas.

The judgments of both courts will be reversed, and judgment rendered in favor of the plaintiff in error, and against the defendant in error.

Judgments reversed, and judgment for plaintiff in error.

Williams, Btjrkbt, Spear, Davis and Shauck, JJ., concur.  