
    McBride, Treas., v. The University Club.
    
      Court of appeals — Appellate jurisdiction — Chancery case — Section 6, Article IY, Constitution — Action to recover taxes illegally collected not appealable.
    
    A suit brought under the provisions of Section 12075, General Code, to recoyer back taxes illegally collected, is an action at law and not a chancery case, within the purview of Section 6, Article IV, of the state Constitution as amended in 1912. Nor is such an action appealable to the Court of Appeals under that section of the Constitution.
    (No. 18826
    Decided March 3, 1925.)
    Error to the Court of Appeals of Cuyahoga county.
    In the court of common pleas of. Cuyahoga county the University Club filed its petition against the county treasurer, styled “petition for money only.” Pursuant to the precipe the summons was likewise indorsed, together with the amount claimed.
    The University Club under the terms of a certain lease, with an option for purchase, had exercised the latter and obtained a deed in fee to the premises. This deed contained certain restrictions, among others one requiring the premises to be used for club or residence purposes until 1936. The petition alleged that the county auditor assessed the premises for valuation as, if the same were unrestricted and available for business or commercial purposes, at $2,000 per foot, whereas their true value in money under the restrictions was only $600 per foot. The county auditor certified his valuation to the county treasurer for collection. The club tendered to the county treasurer a certain amount which it claimed to be due legally for one-half the taxes, protesting against the payment of the balance upon the claim that the assessment was illegal. Later a complaint was filed with the county auditor against the valuation made under the auspices of the county auditor, asking for its reduction. Hearing was had before the county board of revision, and, later, before the tax commission of the state, wherein the dub obtained no relief. Soon thereafter plaintiff paid, under protest, the balance of the tax levied against the premises upon the valuation made by the' county auditor-, together with interest and penalty. The petition alleges further that in arriving at its true value in money the auditor failed to take into consideration all matters affecting the value of the premises. The prayer asks that the court find the true value of the premises and that the plaintiff have judgment against the treasurer in the sum of $7,179.37, with interest, this being the amount of excess taxes and penalty paid by the club under its protest, and claimed to be illegal.
    In the trial court a demurrer to the petition was overruled. An answer having been filed the case was submitted on the pleadings and • evidence, and judgment was rendered in favor of the plaintiff for the amount claimed in the petition, with interest. The county treasurer thereupon appealed the cause to the Court of Appeals. That court dismissed the appeal on motion of the University dub, whereupon error was .prosecuted to this court.
    
      
      Mr. Edward C. Stanton, prosecuting attorney, and Mr. Geo. C. Hansen, assistant prosecuting attorney, for plaintiff in error.
    
      Messrs. Simmons, DeWitt & Vilas, for defendant in error.
   Jones, J.

We are not concerned with the merits of the controversy. This record presents a single question for our review: Was the case instituted in the court of common pleas a chancery case, and therefore appealable to the Court of Appeals? Under Section 6, Article IV, of our Constitution, as amended in 1912, chancery cases only are appeal-able to the appellate court.

In the early jurisprudence of this country, as stated in the text, 26 Ruling Case Law, p. 460:

“It was originally the law in most if not all of the states of the union that under no circumstances would the collection of a tax be restrained by an injunction.”

While later decisions have potentially modified that doctrine, it seems that Ohio adhered to it until the passage of the remedial act of 1856, which is now Section 12075, General Code.’ That section now reads:

“Common pleas and superior courts may enjoin the illegal levy or collection of taxes and assessments, and entertain actions to recover them back when collected, without regard to the amount thereof, but no recovery shall be had unless the action be brought within one year after the taxes or assessments are collected. ’ ’

Until the enactment of that section, the prior decisions of this court denying the injunctive remedy are fully discussed in the opinion in Stephan, Treas., v. Daniels, 27 Ohio St., 532 et seq. The taxpayer might have his legal remedy only if there was a want of power under a valid law to levy it.

By the adoption of the quoted act, two remedies are given, (a) an equitable remedy by injunction, where it is only necessary to prove that the tax is illegal, ,and (b) a legal action to recover if the tax is void for any cause.

Since the act of 1856, this court has decided that the jurisdiction conferred by the act to restrain the collection of illegal taxes is an equitable one “to be exercised upon equitable principles.” Steese v. Oviatt, Treas., 24 Ohio St., 248.

An action by way of injunction' seeking to restrain the collection is an equitable case, cognizable in chancery and subject to appeal under the provisions of Section 6, Article IV, of our Constitution. Manning v. Village of Lakewood, 94 Ohio St., 85, 113 N. E., 661.

However, an action to recover back taxes illegally levied and paid is purely a legal action, created by statute, in which a complete remedy is available whether the law imposing the tax is valid or otherwise. In such an action a full and adequate remedy is conferred upon the taxpayer; resort to the chancery powers of a court is not necessary to enforce recovery. The action instituted was therefore not a chancery- case, and the Court of Appeals did not err in dismissing the appeal. Its judgment is affirmed.

Judgment affirmed.

Marshall, C. J., Matthias, Day, Allen and Kinkade, JJ., concur.  