
    *Joshua Hambleton v. Joseph W. Dempsey & Co.
    A special verdict is irregular and insufficient unless it find tbe truth of the facts. It will not do to refer the evidence to the court and ask their judgment upon it. 
    
    If a board of equalization add to the valuation returned by the assessor, the law will presume it to be done upon sufficient evidence, unless the contrary be made to appear by the party aggrieved.
    The law gives notice that the board will meet at a time and place certain. No special notice to the tax-payer is requisite. 
    
    Error to the common pleas of Lawrence county.
    The action was assumpsit, brought by Dempsey & Co., to recover money paid by them to Hambleton, as treasurer of Lawrence county, upon a tax demanded by him, and denied by them to be legal. The money was paid over to the treasurer under protest.
    The bill of exceptions shows the following state of facts: The plaintiffs below being called on by the assessor of the township, in the spring of 1850, made their statement of taxable property in the usual form, which was sworn to and returned by the assessor to the county auditor. That, without any actual notice to said plaintiffs, the county board of equalization proceeded to add to their personal property the sum of $20,224, as follows:
    To non-enumerated articles.............................. $3,000
    To merchants’ stock....................................... 4,800
    To manufacturers’ stock............................................... 9,054
    To moneys and credits................................................. 3,074
    To their cattle............................................................ 296
    Total.................................................................. $20,224
    
      *The tax was assessed on the sum thus superadded, as well as upon the amount sworn to, and returned by the assessor. The plaintiffs below paid these taxes to the treasurer, protesting that they were illegal, so far as said additions were concerned, and giving him notice that they should resort to legal measures to recover back their money.
    The cause was submitted to a jury at the May term, 1851, who returned into court their verdict, as follows :
    
      “ We, the jury, find that in case the court, upon the foregoing-statement of facts, should be of opinion that the law of the ease was with the plaintiffs, that then we find for the plaintiffs, and ■that the said defendant did assume and promise, etc., and we assess the damages of the said plaintiffs at $185.65. But in case that the court, upon the foregoing statement of facts, should be of opinion that the law of the case is with the defendant, then we,, the jury, find for the defendant; and that the said defendant did not assume and promise, in manner and form, as the said plaintiffs hath above thereof alleged against him.” And thereupon the court took the matter under advisement to the term of Sejitember, 1851, and then declared its opinion that the said plaintiffs were entitled to recover, and rendered judgment upon such special-finding of facts, in favor of said plaintiffs and against said defendant below, for the sum of $185.65, and interest from the first day of last term. To which opinion of the court rendering said judgment, etc., the defendant excepted.
    The foregoing “ statement of facts,” referred to by the jury, seems to have been the items of testimony, written and oral, produced on the trial of the parties respectively, but the facts are not embodied in the verdict, and are only found in the bill of exceptions.
    This writ of error is prosecuted to reverse the judgment of the-common pleas, and errors are duly assigned.
    Nigh & Tract, for plaintiff in error:
    *On the trial, objections were taken to the competency and relevancy of each item of evidence. In receiving the tax, the defendant below performed only his official duty.
    We insist that the county board of equalization, at its April session, 1850, was authorized by law to add to the sworn statements returned by the assessor. Sec. 4 of the act amendatory of' the- general tax law, 45 Ohio L. 61, passed February 8, 1847. Act of February 22, 1848, vol. 46 Ohio L. 69; sec. 14, p. 72.
    Was it necessary to give notice to the plaintiffs below of the action of the board of equalization in order to render tho action of the board valid. We claim not. The law does not require notico. Section 14 of the act of 1847, authorizing the county auditor, in certain cases, to correct the return of the assessor, requires notice to parties in interest. Not so with the county board of equalization, when acting under section 4 of the act.
    The statute of Massachusetts, in express terms, requires notice, and in that respect differs from our statute, which provides no notice nor any officer to give notice. 2’ Mass. 118. Tho uniform, practice in all the counties has been for the board to act without notice.
    Mr. Nash, for defendant in error, made the following points :
    I. He claimed that the board of equalization did not possess tho power to make these additions. Section 4 of tho act of 1847, 45 Ohio Stat. 61, might have designed to give such a power; but sections 1 and 14 of the act of 1848,46 Ohio Stat. 69,72, modify tho former acts, and limit the power to hearing complaints and equalizing valuations. The reference to section 4 of the act of 1817 is limited to the proviso which forbids a reduction of the sum total. Section 16 of the act of 1847 shows that the auditor is the one empowered to act in cases of omissions in sworn lists, and for this purpose he is authorized to swear witnesses, and required to notify the *parly of his intention to make the inquiry. Here is an ample remedy to meet such cases ; why then apply another one not at all adapted to obtain the ends of justice—a board, proceeding, as is claimed, ex parte, and without power to compel .testimony under oath ?
    II. But, admitting the board have the power, how shall this power be exercised? Ex parte and without notice? The power is a quasi judicial power; the board must inquire and decide upon testimony, and their decision affects the interests of others. In such a case, he claimed that the principles’of eternal justice require that the party shall have notice of any inquiry and decision which are to increase his taxes, as in this case, $180, and write him down perjured in swearing to his list. Such are the authorities : 2 Mass. 170 ; 4 Ib. 627; 2 Ib. 489 ; 3 Ib. 188; 15 Johns. 537; 14 Conn. 72; 2 Hornington (N. Y.), 337; 4 N. H. 127. This last
    
      case decides that the tax is void, unless it is shown on trial that the facts justified the addition. No such evidence was offered in this case. He claimed, however, that the inquiry under our statute should be made by the board after notice given. This would bo less expensive than a suit at law. Either way, this case is a direct adjudication in favor of the decision below. Tide 8 N. H. 166; 7 Ib. 113 ; 2 Ib. 236; 15 Vt. 640.
    III. The tax being void, can this action be maintained against the collector? He claimed that the treasurer was like an agent from whom, money paid to him for his principal, might be recovered back, if the agent had not paid it over, or had been notified not to pay it over, as was done in this case. Boston and Sandwich Glass Co. v. Boston, 4 Met. 181; Amesburg W. & C. M. Co. v. Amesburg, 17 Mass. 461; Perry v. Dover, 12 Pick. 206 ; 4 Pick 361; 6 Conn. 223; 12 Pick. 7; 10 Conn. 127. This rule has been applied to collectors. Elliott v. Swartwout, 10 Pet. 137. This case is directly in point. The same is admitted to be law in Lewis v. Tate, 10 Mo. 650.
    IY. This is not a voluntary payment. The party had a *right to pay under protest, and then sue to test the legality of the tax. 4 Met. 181; 12 Pick. 7; 6 Conn. 223; 10 Ib. 227; 14 Ib. 72 ; 9 N. H. 524. A payment to a collector of taxes, of taxes claimed by>him in virtue of a tax duplicate, is not a voluntary but a compulsory payment.
    
      
       See Lessee of Blake v. Lewis Davis et al., reported in this volume, as to special verdict. (
    
    
      
       For construction of the act for levying taxes on all property in this state, according to its true value, passed March 2, 1846, and the amendatory acts, see Loring et al. v. The State, 16 Ohio, 590; Wetmore v. The State, 18 Ib. 11; Cincinnati College v. The State, 19 Ib. 110.
    
   Spalding, J.

"We have no hesitation in reversing the judgment of the court of common pleas, and for two reasons:

1. The verdict neither finds the issue nor- the facts upon which the court may pronounce the finding as a conclusion of law. The statute provides that “ no jury shall, in any case, be compelled to give in a general verdict, so that they find a special verdict, and show the truth of the facts, and require the aid of the court.”

Hero they have found no one fact to be true, bu| have simply referred the court to the evidence, and told them if upon that evidence they are of opinion the law of the case is with the plaintiff's, then the jury find for the plaintiffs, etc. It is the game of hide-and-go-seek ” between the court and jury. The evidence is laid before the jury, and they are told to find the facts. The jury la^ the same evidence before the court, and tell them to find the facts and law together. Such practice as this we can not sanction. The parties are disposed to treat this as a special verdict. One of the best special pleaders in this or any other country, has laid down the ruje governing this subject, in this wise: “If in a special verdict, the jury find only the evidence of a material fact, instead of the fact itself, or otherwise omit to find, upon such a fact, either way, no judgment can be rendered upon the finding for either party, since a matter of fact essential to the determination of the cause is left unascertained by the verdict.” Crould’s Pleading, ch. 10, sec. 62

2. We see no reason to find fault with the action of the board of equalization, in the cases of Dempsey & Co., and of Dempsey, Rogers and Ellison, who compose said firm of Dempsey & Co., of the date of April 23, 1850.

*By section 14 of the amendatory tax law, passed February 8, 1847, the board has power “to add to or deduct from the valuation of the personal property, or moneys, or credits of any person returned by the assessor, upon such evidence as shall be satisfactory to said board, whether said return be made upon the oath of such person or upon the valuation of the assessor.”

By the amendatory act passed February 22, 1848, section 14, it is provided that “the annual board of equalization, constituted by section 1, shall at the same time hear complaints and equalize the assessments of all personal property, moneys, and credits, new entries, and new structures, returned for the current year by the assessor, being governed by the provisions of section 4 of the amendatory tax law, passed February 8, 1847.”

We do not hesitate to say that the power “to add to or deduct from the valuation of the personal property,” is committed to the board created by the act of 1848, as fully as to that under the act of 1847. How otherwise could they “ equalize the assessment of all personal property?”

It is objected that the tax-payer had no notice of the action of the board, and that it nowhere appears affirmatively, that they" acted upon evidence of an undervaluation of the property. The law fixes the time of meeting and the place, to wit, the second Monday in April, annually, and at the auditor’s office. This is notice to every citizen who has property, real or personal, returned for taxation.

As to the arbitrary proceedings of the board, in adding to the valuation put upon their personal property by the defendants in error, wo feci bound to presume in favor of a proper discharge of their duty by these officers, and as the law authorizes them to act “upon such evidence as shall be satisfactory to them,” in the absence of any showing to the contrary, the conclusion of law is, that they acted upon sufficient evidence.

The judgment ol the common picas will be reversed, with costs.  