
    Peter v. Parkinson, Treasurer.
    
      Suit by county treasurer — To enforce collection of personal taxes— County commissioners without authority — To compromise or settle such suit — Section 2859, Revised Statutes.
    
    Where suit is brought by the county treasurer under favor of Section 2859,' Revised Statutes, — Section 5697 General Code, — to enforce the collection of personal taxes which stand charged upon the duplicate in the name of the person against whom such suit is instituted, the board of county commissioners, is without authority to compromise or settle such suit, or to remit or release, in whole or in part, the taxes sued for.
    (No. 12098 —
    Decided October 25, 1910.)
    Error to the Circuit Court of Holmes county.
    The defendant in error, Charles D. Parkinson, as treasurer of Holmes county, Ohio, filed his petition in the court of common pleas of that county against Emil A. Peter, plaintiff in error herein, alleging that personal taxes to the amount of four thousand eight hundred eighty-three dollars and ninety-five cents stood charged on the tax duplicate of said county against said Emil A. Peter, that said taxes were due and unpaid, and that the defendant, Emil A. Peter, was indebted to plaintiff as treasurer of said county in that amount, and praying for judgment against said Emil A. Peter for said sum of four thousand eight hundred and eighty-three dollars and ninety-five cents with interest thereon from September 16, 1905. To this petition Emil A. Peter filed the following answer: “The defendant for answer herein admits that the said Charles D. Parkinson is the treasurer of said Holmes county, Ohio, and is acting as such, but defendant denies that personal taxes to the amount of $4,883.95 stand charged on the tax duplicate of said county against him, and he-denies that there are any taxes due and unpaid said treasurer or county. Defendant denies that he is indebted to the plaintiff in said sum of $4,883.95, the said alleged amount charged against him, or in any sum whatever, and if any entry or charge exists on the records as alleged the same is without authority or knowledge of the auditor of said county and were not duly levied, and defendant denies that said sum or any sum whatever is charged against him on said duplicate as taxes and penalty. And defendant denies each and every allegation in the petition contained except such as are herein specifically admitted to be true. Wherefore, defendant prays that this action be dismissed at plaintiff’s costs.” To this answer' Charles D. Parkinson, plaintiff below, filed the following reply: “The plaintiff for reply to the answer of the defendant, denies each and every allegation'thereof, except such as constitute admission of facts set forth in the petition. On February 19, 1908, the cause being then pending in the court of common pleas, S. D. Anderson and P. M. Deetz, two of the commissioners of Holmes county, together with the defendant in said action, Emil A. Peter, appeared in open court, and S. D. Anderson on behalf of the county commissioners stated to the court that the board of county commissioners had settled said cause with the defendant, Emil A. Peter, for one thousand dollars and the costs of the action; neither the plaintiff, Charles D. Parkinson, nor his attorney being then present. On February 24, 1908, the plaintiff, - Charles D. Parkinson, treasurer, with S. D. Anderson, P. M. Deetz and William Ploerger, the three commissioners of Piolines county, and the defendant, Emil A. Peter, all appeared in open court and said Charles D. Parkinson, treasurer, objected and protested against the settlement of said action as theretofore made by said commissioners and the defendant, Emil A. Peter.” We learn from the bill of exceptions that the foregoing was all the evidence offered by either party on the trial of the case. Thereafter, to-wit: on March 9, 1908, the court of common pleas approved and confirmed the settlement made and entered into be-' tween said commissioners and the defendant in said case, Emil A. Peter, and thereupon rendered judgment against said Emil A. Peter for said sum of one thousand dollars, and for costs, and further ordered, adjudged and decreed that upon final payment of said one thousand dollars and costs of suit, the said plaintiff, Charles D. Parkinson, as treasurer, be perpetually enjoined from collecting or attempting to collect from said Emil A. Peter, by suit or otherwise, any further sum for taxes alleged to be due from him. The plaintiff below, Charles D. Parkinson, treasurer, filed his motion asking that said judgment be set aside and for a new trial. This motion was overruled by the court of common pleas and exceptions were duly noted. Thereafter Charles D. Parkinson, as treasurer, filed his petition in error in the circuit court of Holmes county where the judgment of the court of common pleas was reversed, for the reason, as stated by the circuit court, “that the judgment of the court of common pleas was wholly without authority and contrary to the law and because the commissioners of Holmes county, Ohio, had no authority to settle this said cause then pending in the court of common pleas of said county,” and the circuit court remanded the cause to the court of common pleas for a new trial. Thereupon error was prosecuted to the supreme court, and we are now asked to reverse this judgment of the circuit court and to affirm the judgment of the court of common pleas.
    
      Mr. W. S. Hanna, for plaintiff in error..
    Plaintiff in error contends that the words “any debt, etc.” are not used in this section’of the statute in a restricted sense, but that they include all obligations ol the taxpayer and citizen, whether arising upon contract or by operation of law, to pay money into the county treasury, that is due and unpaid, for the reciprocal right of governmental protection.
    Past due or delinquent taxes, having been regularly levied by and through the assessing officers, have the force and effect of a judgment, and the duplicate in the hands of the treasurer containing such taxes, has the force and effect of an execution, and he may distrain any goods and chattels of the person found in the county for their payment. Section 1095, Revised Statutes; Bank v. Smith, 7 Ohio St., 42; Stone v. Viele, 38 Ohio St., 317.
    It appears, therefore, that by statute and decisions of our courts that past due or delinquent taxes are considered as a debt, and also as having the force and effect of a judgment, and upon this proposition we contend that the board of commissioners acted wholly within the scope of their authority.
    Again, could the board of commissioners, not being a party to the cause, lawfully compound for or release said claim? The treasurer is a nominal party only; the claim is due the county; and the commissioners are the financial agents of the county. Shanklin v. Commissioners 21 Ohio St., 575.
    There is no statutory power given the treasurer to settle, adjust, or compound any claim, but by Section 855, Revised Statutes, the commissioners have plenary power “to compound for, or release in whole or in part, any debt, judgment, fine, etc.,” even though they are not parties. In criminal cases the commissioners are not parties, yet by Section 6802, Revised Statutes, the fines collected in such' cases are to be turned into the county treasury to the credit of the general fund, and the circuit court, in the case of In re McAdams, 21 C. C., 450, in construing these two sections, hold that the commissioners under said first named section have power to compound for or release fines. If this principle obtains in criminal cases where the prosecuting attorney is made the collecting officer, why should it not apply to the case at bar when the treasurer is the collecting officer?
    It is well settled that where a public board or officer has general authority to collect a debt or claim, that general authority carries with it the power to settle or compromise as indicated in Printing Co. v. State, 68 Ohio St., 370, and referred to in the brief of defendant in error.
    But where a public board or officer is specially authorized to do a particular thing, that board or officer is limited to the authority granted, and the defendant in error, being limited by Section 2859, Revised Statutes, to a special thing, to-wit: to enforce the collection of taxes, not paid within the time prescribed by law, by a civil action in the name of the treasurer, is granted no power to settle or compromise, and no such power is implied. Mechem on Agency, Section 285.
    
      Mr. David T. Simpson, prosecuting attorney; Mr. C. I. Fisher and Mr. W. Stilwell, for defendant in error.
    
      Under the head of argument counsel for plaintiff in error repeats another “sole reason” for the judgment of the circuit court, to-wit: “That a tax in Ohio was not considered a debt,” and that Section 855, Revised Statutes, “did not apply to taxes.”
    There is nothing in Section 1095, Revised Statutes, giving it “the force and effect of a judgment,” as stated by counsel. Though the power of distraint exists, that has not the elements of a final judgment, for all remedies to stop proceedings by distraint are open to the taxpayer.
    Counsel say: “And the commissioners are the financial agents of the county,” assuming that as such, they not only may act' in every matter, whether it pertains to business of the county solely or to business in which four political divisions are more interested than the county, and also making the claim, regardless of the law specially vesting the power to act, in some other officer. To the doctrine claimed counsel cite Shanklin v. Commissioners, 21 Ohio St., 575.
    On error to this court in. that, case the question of power of the commissioners to act, arose.
    The court sustained their power, but in speaking of their power as to having control of its “financial, interests,” the language used by the .court, on page 583, “the board * * * is clothed with the authority to do whatever the corporate or political entity, the county, might, if capable of rational action, except in respect to matters the cognizance of which is exclusively vested in some other officer or person.”
    That the commissioners may authorize the treasurer to incur expenses by employing collectors of taxes under Section 2858, Revised Statutes, in no way militates against the exclusive power of the treasurer to maintain and control an action for taxes. The only necessary connection the commissioners have with collection by employing collectors is because of their payment out of the treasury which can only be by order of the commissioners.
    It is not claimed by any one in this case that a tax is either a fine or amercement, but counsel for plaintiff in error contends that a tax is a debt. Let us see what a debt is': Anderson’s Dictionary of Law, 315, defines “debt;” page 576, defines “judgment.”
    This brings us to the meaning of the word “tax.” Anderson’s Dictionary of Law, 1006, defines “tax.” United States v. Railroad Co., 17 Wall., 326; Loan Assn. v. Topeka, 20 Wall., 664; County of Mobile v. Kimball, 102 U. S., 703; Meriwether v. Garrett, 102 U. S., 513; Lane County v. Oregon 7 Wall., 80.
    We therefore claim, from the foregoing authorities, that a tax is not a debt, neither is it a judgment, and therefore, the commissioners had no express authority by virtue of Section 855, Revised Statutes, to settle this case because the commissioners constitute a statutory body, with no powers except those specially devolved on them by statute. They can exercise no powers except those expressly given them by statute, and the powers given them by statute are strictly construed. Commissioners v. Mighels, 7 Ohio St., 109; Treadwell v. Commissioners, 11 Ohio St., 190; Jones v. Commissioners, 57 Ohio St., 189; Finch v. Board, 30 Ohio St., 37.
    Counsel for defendant in error further cite and comment upon the following authorities: State v. Wirick, 81 Ohio St., 343; Commissioners v. Andrews, 18 Ohio St., 64; Commissioners v. Holcomb, 7 Ohio (pt. 1), 232; Swan & Critchfield, page 344.
   Crew, J.

The defendant in error, Charles D. Parkinson, as treasurer of Holmes county, Ohio, commenced a civil action in the court of common pleas of said Piolines county against the plaintiff in error, Emil A. Peter,, to enforce the collection of certain unpaid personal taxes which then stood charged upon the tax duplicate of said county against the said Emil A. Peter. The suit was brought under favor of Section 2859, Bates’ Revised Statutes (Section 5697, General Code), which section provides as follows: “When any personal taxes, heretofore or herfeafter levied, shall stand charged against any person, and the same' shall not be paid within the time prescribed by law for the payment of such taxes, the treasurer of such county, in addition to any other remedy provided by law for the collection of such personal taxes, is hereby specially authorized and empowered to enforce the collection by a civil action in the name of the treasurer of such county against such person for the recovery of such unpaid taxes; and it shall be sufficient, having made proper parties to the suit, for such treasurer to allege in his bill of particulars or petition that the said taxes stand charged upon the said duplicate of said county against such person, that the same are due and unpaid, and that such person is indebted in the amount appearing to be due on said duplicate, and such treasurer shall not be required to set forth in his petition any other or further special matter relating thereto, and said tax duplicate shall be received as prima facie evidence on the trial of said suit of the amount and validity of such taxes appearing due and unpaid thereon, and of the non-payment of the same, without setting forth-in his bill of particulars or petition any other or further special matter relating thereto; and if, on the trial of the action, it shall be found that such person is so indebted, judgment shall be rendered in favor of such treasurer so prosecuting such action as in other cases-; and the judgment debtor shall not be. entitled to the benefit of the laws for stay of execution or exemption of homestead, or any other property, from levy or sale on execution in the enforcement of any such judgment.” This statute in express terms confers upon the county treasurer, in addition to any other remedy providéd by law, authority to enforce the collection of unpaid personal taxes by civil action against the person in whose name such taxes stand charged upon the duplicate, and the legislature has not by statute, or in any wise, delegated to or conferred upon any other officer, board or person the right to so enforce or collect the same, the right of the treasurer in this behalf -is therefore exclusive. The treasurer then having the sole and exclusive right to bring such action, and it being his duty to bring it, by what authority did the board of county commissioners intervene and compromise and settle said cause without the treasurer’s consent and against his protest? It' is claimed by counsel for plaintiff in error that' authority to make such settlement was and is conferred upon the board of commissioners by Section 855, Bates’ Revised Statutes (Section 2416, General Code), which section provides as follows: “The board shall have power to compound for or' release, in whole or in part, any debt, judgment, fine or amercement due to the county, and for the use thereof, except in case where it, or either of' its members, is personally interested; and when the commissioners compound for or release, in whole or in part, any debt, judgment, fine, or amercement, they shall enter upon their journal a statement of the facts in the case, and the reasons that governed them, in making such release or composition.” That taxes are not embraced in either of the descriptive terms “fine” or “amercement” employed in the above statute is at once obvious, and is "admitted, and we think it equally clear that although the assessment of the tax and its entry or charge upon the duplicate, may, for the purposes of statutory collection, as definitely and conclusively establish the right of the treasurer to demand such tax as would a judgment,yet such assessment and charge do not in a technical, or in any proper sense, constitute a' judgment. A judgment is the judicial determination or sentence of a court rendered in a cause within its jurisdiction; and such is the common acceptation and meaning of the term, and it is in this sense, we think, and in this sense only, that the word judgment is used in the foregoing section. In the further consideration of this statute it remains then only to inquire whether or not within its meaning and intent a tax may be considered as a debt, and this also we think must be answered in the negative. In City of Camden v. Allen, 2 Dutcher’s Reports (New Jersey), 398, Chief Justice Green says: “A tax, in its essential characteristics, is not a debt, nor in the nature of a debt. A tax is an impost levied by authority of government, upon its citizens or subjects, for the support of the state. It is not founded on contract or agreement. It operates in invitum. Peirce v. City of Boston, 3 Metc., 520. A debt is a sum of money due by certain and express agreement. It originates in, and is founded upon contract express or implied.” In Perry v. Washburn, 20 Cal., 318, Field, C. J., in discussing the provision of the act of congress making United States notes “a legal tender in payment of all debts public and private,” says: “Taxes are not debts within the meaning of this provision. A debt is a sum of money due by contract, express or implied. A tax is a charge upon persons or property to raise money for public purposes. It is not founded upon contract; it does not establish the relation of debtor and creditor between the taxpayer and state; it does not draw interest; it is not the subject of attachment; and it is not liable to set-off. It owes its existence to the action of the legislative power, and does not depend for its validity or enforcement upon the individual assent of the taxpayer. It operates in invitum. If authority for the distinction is required, it will be found in the cases of City of Camden v. Allen, (2 Dutcher’s New Jersey R., 398); Peirce v. City of Boston, (3 Met, 520); and Shaw v. Peckett, (26 Vt., 482).” In Anderson’s Dictionary of Law a tax is defined to be: “A charge, a pecuniary burden, for the support of government. A charge or burden for which the state may make requisition in a prescribed mode. A tax is not a ‘debt,’ that is, an obligation for the payment of money founded upon contract. It is an impost levied for the support of the government, or for some special purpose authorized by it. The consent of the taxpayer is not necessary to its enforcement: it operates in invitum. The form of procedure to collect, as, an action of debt, does not change its character.” Other authorities which hold that a tax is not a debt are: Lane County v. Oregon, 7 Wall., 71; Meriwether v. Garrett, 102 U. S., 472; City of Augusta v. North, 57 Maine, 392; and 1 Cooley on Taxation (3 ed.), page 17. In the light of these authorities it seems clear that under no proper interpretation of Section 855, can its provisions be so extended as to include taxes within the term debt, and hence, a tax being neither a debt, judgment, fine nor amercement, no authority is conferred upon the board of county commissioners by the provisions of said section to compound, release, or settle the same. Nor is any such authority vested in the board by Section 845, Revised Statutes, which prescribes and defines the general powers and duties of county commissioners.

Some reliance seems to be placed by counsel for plaintiff in error upon Section 1038, Revised Statutes,- which- authorizes the' correction of errors on tax list and duplicate by the county auditor, and empowers the board of county commissioners, under certain circumstances, to order refunded taxes that have been erroneously charged and collected. But neither by this statute nor by any other, is the board of county commissioners empowered to settle, remit, or release, either in whole, or in part, taxes that stand charged upon the duplicate and are unpaid. While in a sense the board of commissioners is the representative and financial agent of the county, its authority is limited to the exercise of such powers only as are conferred upon it by law. As said by this court in the first paragraph of the syllabus in Jones, Auditor, v. Commissioners of Lucas County, 57 Ohio St., 189: “The board of county commissioners represents the county in respect to its financial affairs, only so far as authority is given to it by statute.”

Another, and perhaps sufficient reason why the county commissioners could not rightfully settle or remit the taxes sued for in this case is that such taxes were not wholly due to, nor were they wholly levied for, the use of Holmes county, but there was included therein as well, state, township, municipal, and other taxes.

Without stopping to consider or. discuss the irregularity of the mode of procedure adopted by the trial court in this case, we think it sufficient to say, that for the reasons already stated, the judgment of the court of common pleas was unauthorized and erroneous and the same was properly reversed by the circuit court.

Judgment affirmed.

Summers, C. J., Spear, Davis, Shauck and Price, JJ., concur.  