
    Hunter, Treasurer v. Borck.
    
    
      Delinquent Taxes — Compensation of County Treasurers — Duties of County Treasurers.
    
    1. The penalty of five per centum as compensation to county treasurers, provided in section 1094 of the Revised Statutes, is to be limited to the original delinquent tax, and is not collectible on any subsequent penalty that may be charged upon the duplicate against the property on account of such original delinquency.
    2. To entitle county treasurers to the compensation of five per centum allowed under section 1094 of the Revised Statutes, they must proceed to collect and in fact collect the delinquent taxes by distress, or as provided by sections 1097, 1102 and 1104 of the Revised Statutes; or by special effort in person or through agent.
    (Decided April 24, 1894.)
    Error to the Circuit Court of Lucas county.
    William and Charlotte Barrett were the owners by fee-simple title 'of a lot of land in the city of Toledo, Ohio. All taxes and assessments levied upon said land, and collectible upon the duplicate of Lucas county prior to the year 1891, were duly paid. The one-half of the taxes and assessments for 1891, payable on the 20th day of December of that year, were also paid. The remaining half, payable on the 20th day of June, 1892, they were unable to pay, and the same were by the treasurer returned delinquent., Therefore the auditor added to said unpaid half of said taxes and assessments a penalty of fifteen per cent, of the amount thereof. Said assessments were almost entirely for the paving of the streets adjacent to said lot. Bonds had been issued by the City of Toledo in anticipation of the collection of said assessments, bearing five per cent, interest, which interest was included in said assessment. In addition to the fifteen per cent, penalty, the auditor also charged five per cent, upon the said one-half of said paving assessments charged against said lot for the year 1891 remaining unpaid, as interest thereon for one year. The total amount of said last- half of said taxes and assessments for the year 1891, with the fifteen per cent, penalties and interest added, was entered upon the duplicate for 1892 as the delinquent taxes charged against the land for the year 1891, to be paid on the 20th day of December of the year 1892. The auditor also charged against this lot upon said duplicate the one-half of the taxes and assessments levied thereon for the year 1892, also payable on the 20th day of December aforesaid. These aggregate amounts William and Charlotte.Barrett were unable to pay, and the auditor charged against said property the remaining half of the taxes and assessments levied thereon for the year 1892; entered the whole upon the delinquent sale list, and advertised the aggregate amount as being the delinquent taxes due from said land and the penalties thereon, charged agreeably to law, with notice that unless said taxes and penalties were paid on the third Tuesday of January following, the treasurer would publicly offer the land for sale to enforce such payment. Default being made in payment, the treasurer offered the land for sale on the 17th day of January, 1893, and an individual bid for said lot the precise amount advertised as the delinquent taxes due from the land, with the penalties charged thereon agreeably to law. The treasurer refused to accept the bid or make the sale, unless the bidder would pay him a further amount equal to five per cent, thereon, by him claimed to be a penalty due him as treasurer, as compensation for his services in making the sale and receiving the purchase money, for the use of Lucas county. The bidder refused to pay the additional sum, and said land was by the treasurer returned unsold.
    The auditor then charged against said lot a penalty of fifteen per cent, of the one-half of the taxes for 1892 levied thereon, which were payable on the 20th day of December of that year; entered the same upon said duplicate, and stated upon said duplicate that the aggregate of the taxes, assessments, fifteen per cent, penalties and five per cent, interest already mentioned were the total taxes charged against said lot, and were payable on the 20th day of June, 1893. William and Charlotte Barrett thereafter sold and conveyed said lot to defendant in error, Elizabeth Borck, by deed executed and delivered on the 7th day of May, 1893. By mutual agreement the amount stated upon said duplicate as the taxes charged against said land was by defendant in error retained from the purchase money, and the entire balance of the purchase price was by her paid to her grantors. Forthwith, upon receipt of her deed, and leaving the same with the recorder for record, defendant in error at the treasurer’s office offered to pay the treasurer the total amount charged against said land upon the duplicate of 1892. He refused to receive her money or give receipt therefor, unless she would pay him an additional sum of five per cent, of the entire amount of taxes, assessments, penalties and interest, by him claimed to be a penalty due him as compensation for his services in collecting said moneys, for his own individual use as treasurer.
    It is admitted that in June, 1892, and again in December, 1892, the plaintiff in error, Samuel A. Hunter, treasurer of Lucas county, handed William Barrett a statement of the amount at those respective dates, charged upon the duplicate of Lucas county against said land, and requested payment. In November, 1892, he mailed to said William Barrett a printed notice, addressed by said plaintiff in error as treasurer, to taxpayers generally, of which the following is a copy:
    “Important Notice to Tax Payers.”
    “Your December taxes must hereafter be paid by December 20th, or five per cent penalty must he charged thereon. The Treasurer’s power to waive that penalty (or to extend time of payment without penalty, as has been the practice heretofore), ceased when this office came under the provisions of the Garber salary law, on the first Monday of September, 1892. All fees, penalties and commissions are now the property of the county, and I have no more right to waive the penalty hereafter, than I have to discount your tax five per cent. Please arrange to pay early and avoid the rush.
    “Respectfully,
    “S. A. Hunter,
    ‘ ‘Treasurer.
    
    “Toledo, Ohio, Nov. 1st, 1892.”
    
    Upon the. refusal of plaintiff in error to receive said money and give a receipt for the full taxes charged ag’ainst said land upon the duplicate for 1892, defendant in error commenced her action against him in the court of common pleas of Lucas county to compel such performance, and enjoin all attempts to collect the five per cent, penalty- aforesaid. ■ - •
    
      In the circuit court the cause was heard upon the demurrer to the petition of the plaintiff below; Elizabeth Borck. The demurrer was overruled, and the defendant below, Samuel A. Hunter, treasurer, not desiring to plead further, the cause was submitted to the court. The court found that the statements of the petition were true, and ordered that the defendant, as treasurer, receive the $214.35 paid by plaintiff, in full satisfaction and discharge of all taxes, assessments and penalties charged upon the duplicate of Lucas county for the year 1892, against the lot of land described in the petition, to wit: The northwesterly 20 feet of lot number 1507, in the Vistula division of the city of Toledo, and be perpetually enjoined from returning said land as. delinquent on account of the non-payment by the plaintiff of the five per cent, penalty in plaintiff’s petition specified, and from in any other manner attempting to collect the five per cent, penalty aforesaid.
    To reverse the judgment of the circuit court this proceeding in error is instituted.
    
      J. A. Barber, for Plaintiff in Error.
    
      Bissell & Gorrill, for Defendant in Error.
   By the Court.

It is provided by statute that each person charged with taxes on a tax duplicate, in the hands of a county treasurer, may pay the full amount of such taxes on or before the twentieth day of December, or one-half thereof on or before the twentieth day of December, and the remaining half thereof on or before the twentieth day of June, next ensuing. Revised Statutes, section 1091.

It is further provided by section 1094 of the Revised Statutes, as follows: “When one-half of the taxes, as aforesaid, charged against any entry, on a tax duplicate in the hands of a county treasurer, is not paid on or before the twentieth day of December next, after the same has been so charged, or when the remainder of such taxes is not paid on or before the twentieth day of June next thereafter, the county treasurer shall proceed to collect the same by distress or otherwise, together with a penalty of five per centum on the amount of taxes so delinquent (which penalty shall be for the use of the treasurer as a compensation for such collection); and in all cases where such half of any taxes, other than on real estate, has not been paid on the twentieth day of 'December, the whole amount of taxes, other than real estate, for the current year, so charged, shall he due and delinquent, and shall be collected in the manner and with the penalty provided in this section. ’ ’

And by section 2844, of the Revised Statutes : “When one-half the taxes charged against any entry of real estate shall not be paid on or before the twentieth day of December, in that year, or collected by distress -or otherwise prior to the February settlement, a penalty of fifteen per cent, thereon shall be added to such half of said taxes on the duplicate; and if said taxes and penalty, including the remaining half of such taxes, shall not be paid on or before the twentieth of June next thereafter, or collected by distress or otherwise prior to the next August settlement, the same penalty shall be charged on said last half of said taxes. ’ ’

It will be seen, that section 2844, regulating the penalty on non-payment of real estate taxes, contemplates an effort to collect by distress or otherwise, prior to the February settlement and the August settlement, not only the first and second half of the yearly taxes, but also a penalty of fifteen per cent. Section 1094, directs that the treasurer shall proceed to collect the delinquent taxes by distress or otherwise, with a penalty of five per centum on the amount thereof, for his own use, as a compensation for such collection.

The question, however, arises, shall the penalty of five per centum be had not only upon the taxes that are for the first time delinquent, but upon the penalty assessed thereon. We think the penalty of five per centum is to be limited to an original delinquent tax, and is not collectible on any subsequent penalty that may be charged upon the duplicate against the land on account of such delinquency. The statute is not to be construed as imposing a penalty upon a penalty. White v. Woodward, 44 Ohio St., 347. It is contended, however, that the five per centum is not to be regarded in the light of a penalty, but rather as a compensation to the treasurer. But such per centum is exacted under the statute, for non-payment of taxes due on the 20th of December and the 20th of June; and in the language of the statute it is designated as a penalty. It is a penalty applied in compensation of the treasurer, in like manner as out of the taxes on personal propertjq and the ten per centum penalty added thereto the treasurer, finder section 2856 of the Revised Statutes, is allowed for his services five per centum on the amount collected.

The five per centum penalty awarded to the treasurer by section 1094, was designed to stimulate his activity in collecting the taxes unpaid on the 20th of December and the 20th of June, so that, in making his semi-annual settlement with the county auditor, he might be able to report such taxes as paid, and not liable to come again upon the duplicate as delinquent. But to entitle the treasurer to the compensation allowed under section 1094, he must render the prescribed service. He must proceed to collect, and collect the delinquent taxes by distress or otherwise, together with the penalty of five per centum on the amount of taxes so delinquent.

It is conceded that the treasurer cannot earn his commission by merely standing behind the counter and receiving the tax the next day after the 20th of December. If he would proceed to collect, and collect the delinquent tax otherwise than by distress, he may collect by procuring a rule of court, as provided by section 1097 of Revised Statutes; or, by attachment and garnishee process as described in section 1102 of the Revised Statutes; or, by-action as provided in section 1104 of the Revised Statutes; or, by special effort in person or through agent, and not by simply holding himself out as ready to receive the taxes due, or making a formal request of the taxpayer, or giving notice to taxpayers generally to pay their delinquent taxes.

In the case at bar, the efforts made by the treasurer to collect the taxes and assessments were not such as would meet the requirement of the statute. No suit was begun; no attempt was made to collect by distress; and there was no resort to any other summary mode of procedure.

In June, 1892, and again in December, 1892, the plaintiff in error, as treasurer of Lucas county, handed to William Barrett a statement of the amount charged at those respective dates upon the .Explicate against the land, and reqxxested payment. And in November, 1892, he mailed to Mr. Barrett a' copy of the printed notice, signed by him as treasurer, dated at Toledo, November 1, 1892, addressed to taxpayers generally, and stating that their December taxes must thereafter be paid by December 20, or five per cent penalty would be charged thereon. But such action on the part of the treasurer, was not, in our judgment, such a proceeding’ to collect the taxes and assessment by distress or otherwise, as is requisite to entitle the treasurer to the five per centum penalty under section 1094.

Judgment affirmed.  