
    The Early & Daniel Co. v. City of Cincinnati.
    (Decided October 14, 1935.)
    
      Messrs. Hunt, Bennett <& Utter, for plaintiff in error.
    
      Mr. John D. Ellis, city solicitor, and Mr. Leonard S. Shore, for defendant in error.
   Hamilton, J.

On December 12, 1932, The Early & Daniel Company brought suit to recover payments of occupational tax, paid to the city of Cincinnati under protest for a period commencing May 13, 1931, and ending April 14, 1932, in a total sum of $460.85, and sought judgment for that sum with interest.

The defendant, among other things, stated that the payments made on May 13, 1931, June 10, 1931, and October 13,1931, were made more than one year prior to the filing of the petition on December 12, 1932, and that Section 12075, General Code, requires that a suit to recover back alleged illegal taxes shall be brought within one year from the time of payment, and the defendant further alleges that the statute of limitations is a bar to the recovery of the payments.

The case was submitted to the trial court on an agreed statement of facts, and, upon submission, the trial court entered judgment finding that the tax was an illegal tax, and that all installments were paid under coercion and duress. The judgment further recites that the payments made by plaintiff on December 14,1931, and April 14, 1932, were within the time limitation for the commencement of such action, and that the plaintiff was entitled to recover from the defendant the sum of $206.55,. but the court found that as to the payments made by the plaintiff from May 13, 1931, to October 13, 1931, inclusive, the action was not brought within the time limited for the commencement of the same, and that as to such payments, the defendant go hence without day, thus holding that Section 12075, General Code, applies to the payment of occupational tax.

From that decision as to the application of the statute of limitations, The Early &¡ Daniel Company prosecutes error to this court.

The city of Cincinnati filed a cross-petition in error, claiming error in the finding of the court that the tax was illegal, and error in assessing an interest charge on the amount for which judgment was rendered.

That the tax was illegal was determined in the case of Hanke Bros. v. City of Cincinnati, No. 4031, Court of Appeals, Hamilton county, affirmed by a divided court in 125 Ohio St., 639, 186 N. E., 98. The trial court was correct in holding the tax was illegal.

It is contended by plaintiff in error that Section 12075, General Code, is not applicable, that that section refers only to general taxation and not to special taxes, such as occupational tax. There is nothing in the section to indicate such a classification. It provides for the recovery of back taxes illegally assessed. That the occupational tax is a tax has never been questioned. It is not a license. It is a levy of taxes for the g-eneral purposes of the city.. The statute applies, and the trial court was correct in so holding.

The trial court did, however, improperly allow interest on the amount awarded as not barred by the statute of limitations. See City of Cincinnati v. Cincinnati Street Ry. Co., 45 Ohio App., 511, 187 N. E., 312. The amount of interest awarded was $29.50. The judgment of the trial court will, therefore, be modified by reducing the final judgment from $206.55 to $177.05, and, as modified, will be affirmed.

Judgment modified and affirmed.

Ross, P. J., and Matthews, J., concur.  