
    Butler v. Commissioners.
    Under sec. 1038, R. S. the power granted to the auditor and commissioners in addition to that conferred by the act of January 16, 1873 (70 Ohio L. 10) as construed in State r. Commissioners, 31 Ohio St. 271, is limited to cases where property exempt from taxation has been charged with taxes, and does not extend to cases where taxes have been paid upon property subject to taxation, but returned in the wrong county.
    Motion fo'r leave to file petition in error to the district court of Hamilton county.
    In 1873 Joseph C. Butler died, testate, in Hamilton county. Executors were appointed, qualified and continued in office until 1879, when plaintiff was appointed administrator de lonis non with the will annexed. In 1880 plaintiff was notified by an employé of the auditor of the county, that the executors bad failed, for the five preceding years, to return the bonds and money belonging to the estate for taxation, and that the auditor had charged said estate with $13,848, the tax upon said bonds and money for tlie period aforesaid. Being pressed for payment and threatened with a penalty, lie paid to the treasurer of the county the amount so charged against the estate, and “afterward learned, that the executors during the period aforesaid, resided out of Hamilton county and were not bound to return said property for taxation in said county.” He therefore applied to the auditorio refund the amount, was referred to the commissioners where he filed his application for repayment; the commissioners deciding against him, he appealed to the court of common pleas. In that court he filed a petition setting forth the above facts, to which a demurrer was sustained. The district court affirmed the judgment of the court of common pleas, and he now files a motion for leave to file a petition in error in this court, to reverse the judgment of the district court.
    
      Mallon <& Ooffey, for the motion.
    
      O. J. Cosgrave, contra.
   By tub Coget.

In State v. Commissioners, 31 Ohio St. 271, an effort was made to require the commissioners to order the auditor to draw his warrant in favor of the relators, for taxes paid by them upon property, which, as a pure public charity, was exempt from taxation. This court then held, that the statute of 1873, providing for the correction of errors by the auditor and commissioners (70 Ohio L. 10, 11), did not authorize the commissioners to make such order, except where the error was clerical merely, and did not cover a case of taxes paid upon exempt property.

The act referred to was changed in the Revised Statutes, § 1038, by adding the words “ or when property exempt from taxation has been charged with tax, or in the amount of such taxes or assessments.”

The claim of plaintiff is not that the property of the estate was exempt from taxation, but that the executors, not residing in Hamilton county, were not compelled to return it for taxation in that county. The change in the statute was for the purpose of enabling the commissioners to order the repayment of taxes, erroneously collected upon property embraced in sec. 2732, R. S. and similar provisions, as exempt from taxation, and does not cover a case like the one at bar, where the property is subject to taxation, but returned or charged in the wrong county.

Motion overruled.  