
    Ohio, ex rel. C. A. McConahey v. John Seaman, Treasurer, etc.
    An order drawn by the auditor of a county on the county treasurer, under section 14 of the act of May 6, 1868, providing for the establishment and construction of ditches by township trustees, is only required to be paid by the treasurer out of funds in the treasury derived from assessments made in the proceeding under which the work is done for which the order is given.
    Application for Mandamus.
    Under the the act of the general assembly of the State -of Ohio, entitled “ an act to provide for locating, establishing, and constructing ditches, drains, and water-courses in townships,” etc., passed May 6, 1868 (S. & S. 322), one H. Kohn completed some jobs of ditching in Hoagland town.ship, Van Wert county, and on the 26fch day of October, 1868, pursuant to section 13 of said act (S. & S. 327), received four several orders (one for each job), drawn by the auditor of the county, payable out of the county treasury to .said Kohn or bearer, for the amount due to him for said vseveral jobs. Kohn sold and transferred said orders to Charles McConahey. The township trustees had, pursuant-to said, section 13, certified to said auditor the amount each section of the ditch sold for, adding the proportionate amount of cost and expenses of such sale, together with a correct description of each piece of land, and the auditor had placed the same on the duplicate to be collected as other state and county taxes are collected. On the 6th day of June, 1872, said McConahey presented said orders to-John Seaman, treasurer of the county, at his office, and demanded payment^ which was refused. The treasurer-then had sufficient county funds to pay all of said orders,, but no funds had been collected upon the aforesaid assessments, nor have any such funds since come into the county treasury. McConahey sued out an alternative mandamus-directed to the treasurer, and the respondent makes return-setting out the foregoing facts. The complainant admits' the facts stated in the return, but insists that he is entitled to a peremptory writ.
    
      Alexander & Salzgaber, for the complainant:
    The orders are payable out of “ the county, treasury.”' S. & S. 327, sec. 13.
    
      James L. Price, for the respondent:
    The relator can not succeed in the action, unless it was-the duty of the treasurer to pay the orders in question out of funds collected for county purposes.
    By county funds, we understand money collected by levy-on all the taxable property of the county for general county purposes, such as payment of public county officers acting under salaries, the expenses of the administration of justice-by courts, etc., within the county, and perhaps one or two other objects, pertaining in all cases to the welfare of the whole people of the county.' These funds'come not from any special locality, but from all resources on the equal basis of taxation. This is taxation for county purposes, and when collected, the funds are county funds.
    The proceedings, under the township ditch-law, bring: about no taxation, but merely an assessment. There is no levy, no general charge even upon the lands benefited,, except in cases where land-owners neglect or refuse to construct the portion assigned to them.
    Let us examine briefly the statute. All its requirements-, look to local benefit. They can go no further. There is no jurisdiction beyond the township, and they have no power to burden the citizens of the whole township, unless the records show that they all were benefited.
    The power and policy of this statute proceed upon the same principle that governs municipal corporations in enforcing sidewalks and other local benefits.
    That such charges are not taxes,. but are assessments,. I refer the court to following cases: Butler v. To'edo, 5 Ohio St. 225; Hill v. Higdon, 5 Ohio St. 243; Ernst v. Kimble, 5 Ohio St. 520; Reeves v. Treasurer, etc., 8 Ohio St. 333.
    Being a mere assessment, it fixes upon the specific property benefited for the payment. It can look nowhere else. It can call on no other source; no one else is bound to pay except the land-owner, and this principle decides that placing the amount for which the work sold on the tax duplicate, can not create an obligation that other'citizens shall pay either all or any part of it.
    This ditch may not benefit a half-section of lands, yet the relator would have all orders issued under said act paid out of county funds, thus making a remote corner of the county that has done its work of draining at great cost and labor, contribute to discharge the assessment in such distant locality, without the slightest compensation in any form. This is against the rule of fair and just taxation.
    While relator’s counsel admit that trustees of the township-can not assess any part of the labor or expense of a ditch to-persons beyond the township, yet they insist that because the work is sold out and placed on the duplicate, it then becomes a tax, and the orders may, and ought to, be paid from-county funds. We urge the contrary. The,man who bids-off' work under provisions of the ditch-law, does so with a presumed, perhaps an actual, knowledge of the law, 'which becomes a part of his contract; and who can conceive that when he so bids off work, that he looks to the whole taxable property of the county for his pay ? He has no right to. He is not so employed. The trustees can not. sell on such terms. They have no power to bind the county, and no certificate of the completion of the work which they can give, can fix a liability on any one else than the land-owner benefited, and whose work they have procured to be done, while acting as his agent, by operation of law. If the landowner should do his work, can he look to county funds for reimbursement or contribution ? Surely not. Then when the agency of the law employs some one to do it for him, can such employee do more than could the owner? It seems this reasoning should settle the question.
    But it is claimed that the language of section 13 of the township ditch-law establishes the relator’s case.
    The words read, substantially, that, “when on duplicate, the amount of sale, etc., shall be collected as other taxes,” and “ auditor shall issue orders' which shall be paid, out of county treasury,” etc. The drawing and reading of this section does not make such charge a tax, although by in.adverteuce it is spoken of as being collected as “ other taxes.” Does this section say such orders shall be paid out of county funds? No: but out of the county treasury, which is the -depository of all classes of funds handled by the collector of taxes. It could be claimed with as much force that these orders may be paid out of bridge or poor funds as out of -county funds, for one is no more sacred than the other.
    I claim that this language means simply, that to compel ¡land-owners to do or pay, the legal machinery adopted for collection and enforcing collection of taxes is used, or may be used, to enforce ditch-assessments ; that putting on the duplicate is a part of this machinery — selling the lands as delinquent, if not paid within time to save delinquency; and when, by these means, the money is collected, it goes into the county treasury, not county fiends; and then may be drawn on, and is payable out of the county treasury, not 
      county funds. There is no ditch-fund in hands of respondent, and has been none.
    How can he transfer any part of county funds to pay local orders ? It is a fund all citizens of county are interested in, and the treasurer could be enjoined from scattering what has been levied on property generally in payment of liabilities of parties who have received all the benefits, and wish, others to pay for them.
    The law in question makes no provision of this kind, and if not, the obvious rule must be adhered to.. I maintain that it must clearly appear by provisions of such statute, that full and ample powers are conferred on the custodian of the people’s money to apply it to such purpose. Not one word is in the ditch-law giving such power. It is therefore prohibited by the general laws regulating the subject.
    But it may be claimed that the treasurer should pa.y these orders out of county funds, and reimburse the county by collecting the assessments from the lands chargeable therewith.
    We have shown there is no authority vested in treasurer to do this. There has been, and always will be, litigation, and consequently cost and expense, in collecting these assessments. Several years may pass by with necessity for attorney and other means of enforcing the collection. All this would be a total loss to the whole people of the county.
   By the Court.

Section 13 of the act of May 6, 1868 (S. & S. 327), provides that orders drawn pursuant to its provisions, by the county auditor, shall be payable out of the county treasury. It designates the place of payment, but does not specify the fund out of which such payment is to be made. It, however, prescribes an assessment by'which the sums required may be collected into the treasury. The legislature has directed the levy of taxes separately, for county purposes, for bridges, roads, etc. — each to be kept distinct from every other; and the disbursement of moneys raised for one purpose, in payment of obligations contracted for any other object, is forbidden, save in cases expressly named by statute. It is not claimed by the relator that any part of the bridge or road funds can be used in payment of the orders field by him, but he urges that money collected for “ county purposes” may be so used. We think not. While the construction or maintenance of public roads and bridges is by express enactment excluded from “ county purposes,” it can hardly be maintained that the legislature intended to include within them labor upon a local drain. The peremptory writ must be refused, and the application dismissed at. the costs of the relator.  