
    Thomas Thompson v. John Kelly, Treasurer of Belmont County.
    The act of March 20, 1850 (48 Ohio L. L. 320), authorizing the county of Belmont, on certain conditions, to subscribe for stock in the Central Ohio Bail-road Company, and amending the charter of said railroad company (46 Ohio L. L. 165), was not inconsistent with the new constitution of Ohio.
    Where the law providing for a tax is valid, but those charged with the execution of the-law before the treasurer is called upon to act, commit some irregularity, error, or omission, such as renders the assessment illegal, the treasurer is not liable for collecting the tax, if the duplicate delivered to him i® regular on its face, and duly certified. In such a case, the duplicate is to the treasurer as an execution to a sheriff. The case of Loomis v. Spencer, 1 Ohio St. 153, approved.
    Petition in error, reserved in the county of Belmont.
    The judgment sought to be reversed was one of the court of common pleas of Belmont county ip an action of assumpsit ♦brought by the plaintiff in error to recover the amount of a tax collected by the defendant as treasurer of Belmont county, and assessed against the plaintiff under the subscription made by the commissioners of the county for stock in the Central Ohio Railroad Company. The acts under which the commissioners acted were the act of February 18, 1848 (46 Ohio L. L. 165), amending the charter of the said railroad company, and authorizing the county of Muskingum and the town of Zanesville, on certain conditions, to subscribe for stock in the said company, and the act of March 20, 1850 (48 Ohio L. D. 320), further amending the charter and authorizing a subscription by Belmont county. A notice wa» given by the commissioners of the vote to be taken for or against subscription, stating, among other things, that the company had “ caused surveys to be made on different routes along through said county, with a view to the ultimate location and construction of said road,” and that it was, as the commissioners believed, “in good faith contemplated by said company to locate and construct said road along through the whole length of said county in an east-, erly and westerly direction,” and submitting to the voters the following proposition : “ The qualified electors of said county assent* ing thereto as above provided, the commissioners of said county will subscribe one hundred thousand dollars to the stock of the said Central Ohio Railroad Company, upon the condition that said road shall be located and constructed along through the county as aforesaid.” This notice being published thirty days, the vote was taken and a majority of votes given in favor of the subscription, October 14, 1851. The subscription was made on the 21st February, 1852. At the Juno session, 1852, made the following order:
    “June 22, 1852. We, the county commissioners, order the following levy to bet made on the duplicate of taxable property of this county for the present year :
    
      For county purposes, 1 mill on the dollar.
    “ school fund, 1 “ “
    
    
      “ poor purposes, 5-10 “ “
    
      “ bridge “ 4-10 “ “
    
    To pay interest, 1 “ “
    
    
      “ John P. Newman,
    “ Ira Lewis,
    ) j
    
      Commissioners.
    
    The last-named one mill was shown by the auditor to be for the payment of interest on the railroad subscription and on a debt of $300, due by the county for other purposes; and it was carried into the duplicate, which was as follows:
    Thomas Thompson:
    
      
    
    It was in testimony that the plaintiff tendered the amount of the tax assessed against him, except as to the assessment for railroad purposes, and the tender being refused, the plaintiff paid the amount of the assessment, protesting against its legality, and giving notice that ho would sue to recover back the amount paid under the assessment for railroad purposes.
    The jury having returned a verdict for the defendant, the plaintiff moved for a new trial; that motion being overruled, a bill of exceptions was signed and sealed, showing the facts above stated.
    
      W. Kennon, Jr., and Swan & Andrews, for plaintiff.
    
      Pugh, Goddard, & Eastman, and Gholson & Miner, for defendant.
   Corwin, C. J.

The opinion of the majority of the court in the •case of Cass v. Dillon, ante, 607, disposes of the constitutional question raised in this case.

The act under which the subscription and assessment were made, being a valid and constitutional law, and the duplicate *delivered to the treasurer being regular on its face and duly certified to him, no irregularity in the acts of the commissioners, or in the acts of the company preceding the election, or in the election itself, can deprive him of the protection contained in the duplicate. Behind that the treasurer was not to look—it was to him as an execution, regular on its face, is to a sheriff. Loomis v. Spencer, 1 Ohio St. 153.

The judgment must be affirmed.'

Ranney, J.,

dissenting.

I am of opinion that the court of common pleas erred in instructing the jury that the act under which the subscription of stock was made, and the tax assessed, continued in force and warranted those proceedings, after the present constitution of the state had taken effect; and that for this cause the judgment should bo reversed. My reasons for holding the act inconsistent with the constitution, and repealed by it, are given at length in the case of Cass v. Dillon, decided at the present term.

I am also of opinion that the assent of the electors was not obtained in the manner required by the law, before the subscription was made ; the road not having been located through the county when the vote was taken, and that the running of several experimental lines, without a selection of either, thereby exciting the hopes and expectations of the electors in the vicinity of each, was not only a palpable violation of the policy of the provision requiring a location to precede the vote, but a direct fraud upon the electors and the law itself.

But if the law had continued in force, I should think with the majority of the court, that the case of Loomis v. Spencer is a positive authority for saying that the treasurer could not be made responsible for the fradulent and illegal conduct of others, over whom he had no authority or control; and that he was not bound in such ease to look beyond his duplicate.

*Ho is in no sense, the representative of the county into whose possession the money has gone, and having done nothing more than his duty, he should not be made personally liable.

There is not the least reason for holding the payment to have been voluntary. The treasurer had apparent authority, without suit or action, to seize upon the plaintiff’s property; and under such circumstances he might well pay the money under protest, as he did, to prevent it. It was expressly held in Mays v. Cincinnati, 1 Ohio St. 278, that the payment will “ be considered involuntary when it is made to procure the release of the person or property of the party from detention, or when the other party is armed with apparent authority to seize upon either, and the payment i^ made to prevent it.”

Caldwell, J., also dissented.  