
    Common Pleas Court of Crawford County.
    The State of Ohio, ex rel. The City of Bucyrus, v. Ivan B. Smith, County Treasurer.
    (Decided December 19, 1929.)
    
      Charles F. Sckaber, for relator.
    
      J. D. Sears, for defendant.
   Wright (J., Walter), J.

This is an action in mandamus by the solicitor of the city of Bucyrus, against the county treasurer.

The petition recites in substance that a large number and amount of special assessments for various improvements have been levied against real estate in the city of Bucyrus and have been certified according to law to the county treasurer to be collected as other taxes; that it is the duty of the county treasurer to collect said assessments at the same time and manner as other taxes are collected; that it has been the, custom and habit of the county treasurer to accept general taxes on land against which special assessments have been made for improvements without requiring the owner to pay such special assessments and he asks for a writ of mandamus commanding the defendant to collect such special assessments in the same manner and at the same time as other taxes are collected and for such relief as plaintiff may be entitled.

The answer of the treasurer admits it is his duty to collect special assessments at the same time and manner as general taxes are collected; alleges he has performed that duty as provided by law.

There are various other matters set forth in the petition, answer and reply, which are immaterial to the question presented. The evidence has shown that the treasurer attempted in all cases to collect the special assessments along with general taxes, but when the tax payer protested and objected to the payment of special assessments the treasurer received the general taxes without receiving the special assessments upon the real estate.

The question presented in this case is, can the treasurer accept general taxes upon real estate where the owner objects and refuses to pay special assessments levied against such property, or may he receive the general taxes without the assessments; in other words, must he get all, or take none. The statute pertaining to the collection of special assessments provides as follows (Section 3892, G. C.):

“When any special assessments is made, has been confirmed by council, and bonds, notes, or certificates of indebtedness of the corporation are issued in anticipation of the collection thereof, the clerk of the council, on or before the second Monday in September, each year, shall certify such assessment to the county auditor, stating the amounts and time of payment. The county auditor shall place the assessment upon the tax list in accordance therewith and the county treasurer-shall- collect it in the same manner and at the.same time as other taxes are. collected, and when collected, pay such assessment; together with interest and penalty, to the treasurer of the corporation, to be by him applied to the payment of such bonds, notes, or certificates of indebtedness and interest thereon, and for.no other purpose. For the purpose of enforcing such collection, the county treasurer shall have the same power and authority as allowed by law for the collection of state and county taxes. Each installment of such assessments remaining unpaid after becoming due and collectible shall be delinquent and bear the same penalty as delinquent taxes. The city solicitor, or the regular and authorized legal representative of any such municipality is hereby authorized and directed to act as attorney for the county treasurer in actions brought under.authority of G. C. 2667, for the enforcement of the lien of such delinquent assessment.”

It will be seen from the reading of the above statute that the treasurer shall collect special assessments in the same manner and at the same time as other taxes are collected, when they have been certified to him.

The statute is silent upon the duty of the treasurer under the situation presented. It does not say specifically that he can not collect general tax if the tax payer refuses to pay the special assessment.

It is claimed by the petitioner that the intent of the legislature was, to receive all or none. That such intent is apparent by reason of a recent amendment to the statute when the words “at the same time” were added.

The former statute reading that the treasurer “Shall collect in the same manner as other taxes are collected” and now reading “Shall collect in the same manner and at the same time as other taxes are collected.”

The addition of these words does not clarify the situation in the least. If the legislature had intended to enjoin upon the treasurer the duty to receive both taxes and assessments, or neither, it could have so stated. It is a well settled rule that mandamus cannot be invoked against an official unless there is a clear duty enjoined by law upon him.

Counsel for plaintiff have cited -the case of State v. Brenner, decided by the Court of Appeals of Mahoning county, reported in Law Bulletin,No. 29, at page 15, and of the date of June 17, 1929.

That was a case similar to the one before us. The syllabus in that case merely recites the provisions of the statute. The petition is practically the same as in this case and since a writ of mandamus was allowed in accord-anee with the prayer of the petition, I conclude that the court decided that the treasurer must receive both taxes and assessments, or neither.

There are no reasons given for so holding or issuing the writ of mandamus and no authorities directly in point.

Counsel insist that this case is the last authority upon the question and should be followed. I do not believe in following a case like one wild goose follows another flying across the country. If there are reasons which appear sound, or logic which is clear and convincing to our judgment, then cases should be followed, not otherwise merely because they are decisions.

The collection of general taxes and the collection of special assessments are two separate and distinct functions to be exercised by the county treasurer.

He acts as an elective officer of the county in the collection of general taxes. He acts as a special agent for the city in collecting special assessments for public improvements. Each capacity in which he acts is independent of the other. The one function should not be made an impediment or hindrance in exercising the other function.

It is common knowledge that street improvements are made in cities where assessments are levied against abutting property of such low value that the assessments are partially uncollectible by reason of being above the limits allowed by law, and such conditions are quite common in the cities of this county, and to require the county treasurer to refuse general taxes because people protest and refuse to pay what they consider excessive or unlawful assessments would be a most unusual and arbitrary requirement.

The taxing districts are entitled to the general taxes promptly that the government functions of the several districts may go. on, and should...not-be .hindered in this by réason of the'nonpayment, of "special-assessments,-which are distinct and separate matters!. ! .

The attorney general has rendered two opinions which hold against the relief prayed for in the petition.

The prayer of the petition is refused. The petition is dismissed at costs of plaintiff.  