
    (Eigth Circuit — Cuyahoga Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Caldwell, Hale and Marvin, JJ.
    SARAH J. COZAD v. R. S. HUBBARD, Treasurer of Cuyahoga County, Ohio, and A. E. ATKINS, Auditor of Cuyahoga County, Ohio.
    
      Taxation — Illegal increase of valuation by Auditor — Payment of half year’s taxes as illegally increased — Injunction from collecting second half—
    Where the county auditor, without legal authority, has increased the valuation of a party’s property on the duplicate, and such party pays the half of the taxes for the year so placed on the duplicate without protest, the half of the annual taxes as increased being more than the entire annual taxes on such property as legally valued, and he then ,brings an action to enjoin the collection of the second half of the taxes for the year on the ground that his payment on account of the first half of his taxes as. illegally increased by the auditor amounted to more than the amount of the taxes on his property as legally assessed for the. whole year, such injunction will be granted, although his first payment was intended by him and accepted as the half only of his taxes for the year, he being then unaware of the illegality ■ of such increase by the auditor.
    
      Justice to be done in every casein every case where the court could do justice without violating some provision of the law, it is its duty to do it.
    Appeal from the Court of Common Pleas of Cuyahoga county.
   Marvin, J.

The plaintiff owns real estate in this county, and that having been appraised by the proper authorities for value, the valuation was increased by the auditor of the county under an authority which he supposed he had, but which, as a matter of fact, he had not in law; so that, when he increased the valuation of the plaintiff’s property for taxation, he placed it at a figure beyond that which, under the law, it should have been placed under. That is to say, it having been assessed legally, the assessment made by the auditor was illegal; the auditor placed it too high, not because his rate was too high, but because the valuation he placed upon it was too high — and that was the situation in 1897.

The amount of tax which the plaintiff owed upon a lawful assessment of her property, was four hundred and seven dollars and nineteen cents and three mills.

She says in the petition that about the 20th of December, 1897, she paid what she supposed and what the treasurer supposed, and the auditor too, for he had sent his dm plicate to the treasurer, and each of the officers, as well as this plaintiff supposed that there was due as the one-half of the taxes for 1897 upon this property, $430.0357, and she paid that amount.

The auditor had carried out upon that tax duplicate which he had delivered to the treasurer, the assessment with this higher valuation, and the petition alleges that unless restrained, her property will be returned delinquent and will be advertised for sale, and sold unless she pays this tax.

There is a general demurrer to his petition.

She seeks to enjoin the collection of this tax for the last half of 1897.

It is not averred by the petition, that any effort will be required to make her pay more than the half which will be due for the last half of 1897, upon the property assessed.

The true amount, as has already been said, for the entire year, would be $407,193,

Now it is only the half remaining unpaid or claimed to be remaining unpaid, that it is sought to enforce by the treasurer. But the plaintiff says

“I have already paid for taxes upon this property, for 1897, twenty-three dollars more than the entire legal tax upon the property; and the treasurer ought not to be permitted to force me to pay anything more.”

If a tax had been paid upon this property in 1896, which was sufficient to pay both the tax for 1896 and the tax for 1897, upon a lawful valuation, it is, doubtless, true that the plaintiff would not be entitled to enjoin the collection of the tax for 1897 because she had already paid in 1896 enough for the two years, for she had paid for the last three years a good deal more than enough to pay for 1897, 1898 and 1899. But it is said,notwithstanding that is true, that this is a single assessment; the assessment for a year is one assessment; it is one thing, and it is only by a favor of the statute, section 1091, that permits one to delay the payment of one-half of his tax from December of the year for which his taxes'are being paid, to the next year. This statute reads:

“Each person charged with taxes on a tax duplicate, in the hands of the county treasurer, may pay the full amount of such taxes on or before the 20th day of December, or one-half thereof on or before the 20th day of December, and the remaining half thereof on or before the 20th day of June next ensuing; but all road taxes so charged, shall be paid prior to the 20th day of December.”

This statute was enacted about 1853 — 'possibly later than that — 'Which permitted the taxpayer to withhold from payment the one-half of his tax until the June following.

The next section of the statutes, section 1092 provides:

“When taxes, charged against the property of any person, are paid by installments, as aforesaid, each of such payments, exclusive of road taxes, shall be apportioned among the several funds for which taxes have been assessed, in the proper proportions. ’ ’

When payment is made in December — 'made voluntarily as it was here — It had to be apportioned to the several funds to which, by law, it must go; and it is urged ►that that would be a reason why one should not be permitted, notwithstanding the fact that he has paid such a sum of money as represents all the lawful taxes for the year,having paid it as a half-tax and without protest, having voluntarily paid it, and under the honest belief of taxpayer and collector that he ought to have paid that amount, to withhold the payment of the lawful tax for the last half of the year. So far it seems difficult to understand what is the difference if you reduce the amount to be collected at the June payment, from that which appears upon the duplicate furnished to the treasurer than if you take it entirely off, and the bookkeeping is just as difficult,

It is not very clear what should be done in this case.

The case cited to us, The City of Cincinnati v. James et al., 55 Ohio St., 180, is upon special assessments; but the reasoning seems to fairly apply to this case.

The case in 55 Ohio St., just named, contains this language in the first clause of the syllabus:

“When an assessment for a street improvement, whether payable in installments or not, is larger than' allowed by law, and sufficient has been paid, though voluntarily, to equal or exceed the amount which could be lawfully assessed, the collections of the remainder of such assessment may be enjoined. ’’

I will also read the second clause of the syllabus:

“In such case the action is not to recover payment already made, but to prevent the collection of unpaid illegal installment,’’

Here in the case before us, it is not attempted, as has already .been said, to prevent the payment of such part as would have been legal if the tax had not been paid, I will not take time to read it. Counsel are familiar with it and discussed that and suggested some reasons why it ought not to be applied here.

I remember to have heard a lawyer of learning and high standing in the profession, announce as a maxim which I have not seen jin any book, but which seems to me to be a good one^that in every case where the court could do justice without violating some provision of the law, it is its duty to do it.

It seems that it would be clearly unjust, after this woman has paid all the tax that is due. to require her to pay anything more. And believing that we may do justice without violating any provision of law, we have concluded to overrule this demurrer, and judgment will be so entered.

Lawrence & Estep, for Plaintiff.

Kaiser & Taft, for Defendants.  