Miller v. Hixson

• Decision Date: 22 January 1901
• Citation: 59 N.E. 749,64 Ohio St. 39
• Parties: MILLER et al. v. HIXSON, County Treasurer.
• Court: Ohio Supreme Court

59 N.E. 749

64 Ohio St. 39

MILLER et al. v. HIXSON, County Treasurer.

Supreme Court of Ohio.

January 22, 1901

Error to circuit court, Highland county.

Action by A. L. Miller and others against Charles E. Hixson. From a judgment of the circuit court affirming a judgment dismissing the action, plaintiffs bring error. Reversed.

A. L Miller and his associates, plaintiffs in error, and also plaintiffs below, filed their petition in the court of common pleas on April 9, 1897, against Charles E. Hixson, as treasurer of Highland county, which petition, omitting the caption and signatures, is as follows: ‘ The plaintiffs state: (1) They have been heretofore taxpayers on a certain free turnpike in said county, known as the ‘ Hillsboro & West Union Free Turnpike Road, No. 51.’ The question to the determined herein is one of a common in erest of many persons, who have also been taxpayers on said free turnpike, and the plaintiffs bring this suit for all such taxpayers. (2) On the 5th day of February, A. D. 1883 certain landholders owning lands within one mile of said free turnpike presented a petition to the board of commissioners of Highland county, Ohio, asking the appointment of commissioners to lay out and establish a free turnpike road between the corporation line of the village of Hillsboro and the crossing of Brush creek, at Johnson Forge, within said county, and stated in said petition that they desired the county commissioners to levy an extra tax, not to exceed ten mills on the dollar valuation in any year, on the lands and taxable property within the bounds of the road, and that they desired said tax to continue eight years. (3) Thereupon the county commissioners of said county, on the 7th day of February, A. D. 1883, ordered ‘ that the prayer of said petition be granted, and said road be established a free turnpike road,’ said free turnpike to be denominated the ‘ Hillsboro & West Union Free Turnpike Road No. 51,’ and that a tax of ten mills for the period of eight years on all the property, both real and personal, each year, be levied for the construction of said free turnpike road, and appointed three freeholders of said county to be commissioners of such free turnpike road, who duly qualified as such commissioners, and proceeded to lay out and establish such free turnpike road between the points named in the petition, and returned to the county commissioners a map and profile of such road; including on the map, as nearly as could be done, the names of the landowners whose property would be liable to be taxed for its construction. (4) Thereupon such proceedings were had by the board of commissioners and the auditor of said county that a tax of ten mills on the dollar for the term of eight years was by said auditor entered upon the tax duplicate of said county on all the lands and taxable property within the bounds of said road as laid out and established, for the purpose of constructing the same, and the road commissioners theretofore appointed proceeded in its construction. (5) The original petition presented to the board of commissioners of Highland county as aforesaid was not renewed at the expiration of eight years from the time said tax was levied. (6) On the 7th day of July, A. D. 1884, the county commissioners of Highland county, by an order entered on their journal, continued the tax originally levied for constructing said road, ‘ at the rate of ten (10) mills on the dollar on all land and taxable property within the bonds of said road, for the period of five years, in addition to said levy heretofore made,’ and ‘ further ordered that the county auditor enter the same upon the duplicate for collection according to law.’ (7) Thereupon the auditor of said county, in pursuance of said action of said commissioners did enter upon the tax duplicate of said county ten mills upon the dollar upon all lands and taxable property within the bounds of said road for the period of five years, in addition to that original levied for the term of eight years as asked for in the petition for said turnpike. (8) The period of time during which taxes could be levied upon lands and personal property within the bounds of said free turnpike road, and collected, to pay for its construction, or any indebtedness incurred in its construction, expired with the December annual payment of taxes for the year A. D. 1895; that being the limit of time for the levy and collection of such taxes as fixed by the petition for said road, the aforesaid action of the county commissioners of Highland county, and the law of Ohio authorizing the construction of such free turnpike in pursuance of such petition, as such law existed at the time such petition was filed, and for a long time thereafter, and until all contracts for the construction of said road had been made, and said road completed. (9) On the 5th day of September, A. D. 1887, the commissioners of Highland county, by an order entered on their journal, continued the tax originally levied for constructing said road for another period of five years, beginning at the expiration of the first extension of time for five years, as hereinbefore set forth, at the rate of ten mills on the dollar on all lands and personal property within the bounds of said road, and further ordered that the county auditor enter the same upon the duplicate for collection. (10) Thereupon the auditor of said county, in pursuance of said last-mentioned action of said commissioners, did enter upon the tax duplicate of said county ten mills on the dollar upon all the lands and personal property within the bounds of said road for the period of five years, in addition to that of eight years in pursuance of the petition for said road, and in addition to that of five years as the time for the levy of said taxes was first extended as aforesaid. (11) Said duplicate has come into the hands of the defendant, the treasurer of said county. Said treasurer, the defendant, is proceeding to collect, and will collect, the taxes levied by the auditor of said Highland county in pursuance of said last-mentioned action of the commissioners of said county, unless restrained. (12) The action of the commissioners of Highland county, hereinbefore set forth, whereby they attempted to extend the time for the levy and collection of said taxes for a period of five years in addition to the period of eight years fixed by the petition for said road, and in addition to the period of five years during which the time was first extended for the levy and collection of such taxes, is illegal and void. The action of the auditor of said county in pursuance of said action of the county commissioners, and the action of the defendant in pursuance thereof, as above set forth, is illegal and void. Wherefore the plaintiffs pray that until the final hearing of this cause the defendant may be temporarily enjoined from collecting said taxes, or any part thereof, and that upon final hearing he may be perpetually so enjoined, and for any and all relief to which they and those for whom they sue may be entitled.'

To this petition the treasurer, defendant below, and defendant in error here, demurred on the ground that the petition does not state facts sufficient to constitute a cause of action. The demurrer was sustained by the court and exceptions noted, and on leave an amendment was filed to the petition as follows ‘ The plaintiffs, having obtained leave of court so to do, amend their petition heretofore filed herein by inserting at the end of the fourth paragraph thereof the following: (4a) Said road commissioner, in laying out and establishing said free turnpike, and in returning to the board of county commissioners a map and profile of said road, including thereon the names of the landholders whose property would be liable to be taxed for its construction, by mistake included within the bounds of the taxing district, as so reported, all the lands within one mile on either side of said road, although certain unimproved county roads unconnected with the same ran upon either side thereof within less than two miles. Afterwards, by the decree and judgments of this court, duly made, in divers suits brought by landowners whose lands were more than one-half the distance between said free turnpike and said unconnected roads, the lands and personal property so lying beyond one-half such distance were released from taxation on said free turnpike, and the bounds of said taxing district and the quantity of lands and personal property liable to be taxed for the construction of said free turnpike were largely reduced. (4b) Said road commissioners issued bonds for the purpose of constructing said free turnpike. A part of said bonds were made payable at a date exceeding the number of years set forth in the petition. The taxes levied upon said taxing district, by virtue of said petition and the proceedings thereunder, for the construction of said free turnpike, were not divided in such manner as to meet the payment of the interest and principal of said bonds.’ ‘ (4d) There is now outstanding and unpaid of said bonds so issued and sold the sum of fourteen thousand and ninety-one dollars and fifty-eight cents, principal and interest. There are now outstanding and unpaid certificates of indebtedness issued by said road commissioners to pay for work and material in the construction of said free turnpike the sum of twenty-four hundred and seventy dollars and fifty-seven cents, principal and interest. (4e) The full amount realized annually from the levy of taxes upon the lands and personal property in said taxing district, as the same has been reduced as aforesaid, for the payment of said indebtedness, is insufficient to pay the interest annually accruing thereon.’ This amendment was stricken out, on...