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State v. Hamilton County Commissioners et al.

JUSTICE FEES.

[Superior Court of Cincinnati, General Term.]

STATE OF OHIO V. HAMILTON Co. (COMR's) et al.

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As no provision is made by statute for the payment of compensation to justices of the peace for services rendered by them, in making abstracts of election returns, the county commissioners have no power to make payment for such services out of the county funds.

ON DEMURRER to the answer reserved to general term.

PECK, J.

The action was brought by the plaintiff alleging that after the November election of 1887, the county clerk called to his assistance two justices of the peace, and that they thereupon made the abstracts of the returns of the election as provided by law. That after the abstracts were made and signed, the justices of the peace presented to the county commissioners a bill for one hundred dollars each, for services in that behalf by them rendered, and that the county commissioners; would, unless restrained by the order of the court, order the payment of the bill, and that the other county officers would join with the commissioners in paying the bill, and prayed an injunction against the payment of the claim on the ground that no provision is made by the statutes for any payment for such services.

An answer was filed on behalf of the county commissioners in which substantially the same facts were averred, and the willingness of the county commissioners to pay the bill stated. It was also stated that in making the abstracts of the returns, provided by statute, there had been something over 90,000 words of record made by the clerk and justices, and that if the justices were allowed the statutory compensation for making such records the amount of their claim would be much larger than the $100 each proposed to be allowed, which the justices had agreed should be in full of their claims.

To the answer a demurrer was filed by the plaintiff, and the question to be determined is whether any compensation can he allowed the justices for services so rendered.

It has been frequently held both by the Supreme Court of Ohio and courts of other states, that where the law makes no provision for the payment of an officer he can recover no compensation. Debolt v. The Trustees, 7 Ohio St., 237; Anderson v. Commissioners, 25 Ohio St., 13; McClave v. Miller Id., 14; Kyle v. Commissioners, 26 Ohio St., 46.

The question then is whether the statutes in this case make provision for the compensation of justices for the services rendered. It is claimed on behalf of the defendants that sec. 621 of the Rev. Stat., does not make such provision. That is a section which occurs in the chapter relating to the election, qualification, and duties of justices of the peace, prescribing their jurisdiction civil and criminal, and providing for certain procedure under and before them, and for their compensation.

The section relied upon provides that justices of the peace for services rendered shall be entitled to the following fees: For summons for each defendant named in the writ, 25 cents; for order of arrest, capias, writ of attachment, writ of replevin or mittimus, 40 cents; for each subpoena for one person, 25 cents; for each person in addition named in the

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subpoena, 5 cents; for venire for jury, 40 cents; and so on through a long list of services such as are ordinarily rendered in litigation before justices of the peace, and for services in criminal cases. Also for certain other services of the kind ordinarily performed by a justice of the peace, as for instance ackowledgements to deeds, or the taking of depositions, or performing the marriage ceremony, or certifying accounts against the estates of deceased persons; and then we come to the words which are relied upon: "For each writing or record not provided for 15 cents per hundred words."

It is our judgment that the words relied upon in this section are to be construed by the aid of the maxim noscitur a sociis, and construing it with reference to its association with the other words of the section, that the writings for which compensation is to be paid are such as are made by a justice of the peace in his capacity as justice in connection with the performance of his duties as such in and about the administration of justice or otherwise; and that the matter of assisting the clerk in making the abstracts of election is not one which can be said to come fairly within the purview of this section.

The section of the statutes under which the services were rendered, 2980, provides that on the sixth day after the election, or sooner in case the returns are made, the clerk of the court of common pleas, taking to his assistance two justices of the peace of the county, shall proceed to open the several returns made to his office, and make abstracts of the votes in the following manner, etc., and sec. 2981 gives further directions as to how the abstracts shall be made, and provides that they shall be signed by the clerk and justices.

It seems quite obvious that in making such abstracts the justices of the peace are not acting severally as justices, but as members of a board or body, whose duty it is to make such abstracts, and no one of them can be said to perform that duty, but it is to be performed by all of them jointly. There is language in the statutes which seems to indicate that the clerk shall do the clerical work, and that the presence of the justices is required for the purpose of assisting in the inspection of the returns and directing the making of the abstracts and deciding upon questions that may arise during the progress of the count. Section 2965 provides that the clerk for making out such abstracts shall be entitled to 10 cents for every 100 words, while it is silent as to any compensation for the justices. Taking this section in connection with the other, which provides that the abstracts shall be made by the clerk with the assistance of the justices, and with the well-known duties of the clerk otherwise provided for, it seems to justify the conclusion that the clerical work mentioned is to be mainly performed by the clerk. But whatever may be the correct construction in that respect, we feel clear that the making of the abstracts is a combined work of three persons designated, and the clerical labor can not be said to be the work of any one of them, unless it is the clerk.

As no other statute has been brought to our notice under which the claim of the defendants can be sustained, we conclude that there is no statutory provision authorizing the payment of compensation to justices for services rendered in making the abstract votes of an election.

It is probably true that this is a service for which compensation should be made; that it is one requiring care, skill and fidelity on the part of the person rendering it, and is of a laborious nature. But these

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State v. Hamilton County Commissioners et al.

considerations are proper to be addressed to the legislature, and are not for the court.

The demurrer to the answer is sustained, and there will be a judgment for the plaintiff.

Judges TAFT and MOORE, concur.

I. J. Miller, for plaintiff.

W. A. Davidson & Fred. Hertenstein, county solicitors, for defendants.

TAXATION.

[Superior Court of Cincinnati, Special Term, 1889.]

ADAMS EXPRESS Co. v. FRANK RATTERMANN.

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1. Under sec. 5851, Rev. Stat., providing that "if the plaintiffs in an action to enjoin the collection of taxes or assessments admit a part thereof to have been legally levied, he must first pay or tender the sum admitted to be due," the requirement sufficiently complied with if only so much of the tax imposed as the plaintiff concedes as a matter both of fact and law to be due, is tendered or paid.

2 In actions under secs. 5848 and 5850, to recover back taxes illegally collected, the right of action is founded on the illegality of the collection, and the fact that the taxes were voluntarily paid is a defense the burden of proving which is on the officer making the collection.

3. Where a foreign express company in Hamilton county made the return of its gross receipts within said county from state and interstate business as required by sec. 2778, Rev. Stat., and, without demand by the treasurer therefor, made payment of the tax assessed thereon, protesting against the same as in violation of the constitution of the United States, and paying it only to avoid the penalties and destruction of its business imposed in sec. 2843 for a delinquency in payment, held, that such payment was involuntary, and that the facts stated constituted no defense to a suit to recover that part of the tax paid which had been imposed on receipts from interstate business.

TAFT, J.

The demurrers to the petitions in six cases have been heard together. Three of the petitions are for injunction against the county treasurer to prevent him from collecting from the defendants, who are foreign express companies engaged as carriers of goods in this state, and between this and other states, a tax upon their gross receipts in this county for such carriage, as provided in secs. 2777 and 2778, Rev. Stat. It was decided in May, 1887, by the Supreme Court of the United States in the case of the Philadelphia and Southern Steamship Co. v. Fennsylvania, 122 U. S., 326, that the taxing of receipts of an express company from interstate business was a violation of that section of the constitution of the United States which gives complete control of interstate and foreign commerce to Congress, and that any state law providing for such taxation was void. In the case of the Western Union Telegraph Company v. Ratterman, 127, U. S., 411, the same court decided that these sections of our statutes which apply equally to the taxation of express and telegraph companies, though invalid so far as they impose a tax on gross receipts from interstate business, authorized a tax on gross receipts from business done wholly within the state, and sustained the circuit judge in enjoining a tax upon the receipts rom interstate business and refusing tis

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join a tax upon state business. Upon the invalidity of the sections as to interstate gross receipts, it being a question of the construction of the United States constitution, the decision of the United States Supreme Court is, of course, final, and binding on every court in the land. The question whether the sections, so changed from the meaning intended, have still force to authorize taxation of state receipts, is a question of the construction and enforcement of state law upon which the United States Supreme Court is not so high authority as our own Supreme Court, but until our Supreme Court has decided otherwise, inferior courts should certainly follow the United States Supreme Court. Upon the allegations of the petitions for injunction, therefore, in view of the decisions cited, it is clear that the taxes which it is alleged, Rattermann seeks to collect on interstate receipts are illegal and plaintiffs are entitled to an injunction to prevent such collection under sec. 5850, Rev. Stat. unless the petitions fail to show compliance with requirements of sec. 5851, which is a condition precedent to relief by inJunction provided in sec. 5850. The allegations of the petitions are that the express companies were taxed on their personal property like other persons, and, in addition, on the gross receipts from state and interstate commerce; that a tender of the tax due on the personal property was made and refused by the defendant unless the tax on receipts was also paid, which tax, the petitions allege, is in violation of the constitution of the United States. The petitions were framed on the theory that secs. 2777 and 2778 were wholly inoperative by reason of the unconstitutional taxation of interstate receipts. Section 5851 provides that "if the plaintiff in an action to enjoin the collection of taxes or assessments, admit a part thereof to have been legally levied, he must first pay or tender the sum admitted to be due." Counsel for defendant contend that as the allegations of the petition show, in the light of the decisions above quoted, that something was legally due on receipts from state business, and there is no averment of payment or tender of that, the demurrer must be sustained. The decision of the point urged turns on the meaning of the expression, "admit a part thereof to have been legally levied." Technically, the statement of facts justifying the levy of a tax, is an admission that the tax was legally levied, although such statement is accompanied by an express averment that the tax so levied is unconstitutional. This is because allegations of law are bad pleading generally, and do not change the legal effect of the facts alleged. But I can not think that sec. 5851 is to have any such narrow construction. This remedy is provided to test constitutional questions, and questions of the construction of statutes, as well as questions of fact under such statutes. The word "admit," is to be taken in its ordinary sense, and means that plaintiff concedes as a matter of fact and law, that a part of the tax is due. When he does so, he must pay or tender what he concedes to be due. To hold otherwise, would be to hold that in an action provided by statute for the very purpose of testing questions of law, if the plaintiff makes the mistake of claiming too much, he shall lose his remedy for all, although as to much of what he claims he is in the right. Such a forfeiture of rights by a mistaken claim, was never contemplated by the statute. Plaintiffs admit only that the personal property tax is valid, and aver a tender of that sec. 5851 is therefore complied with.

Plaintiffs are entitled to an injunction against the collection of taxes on the gross receipts of interstate business, on the allegations of the petitions. The demurrers will be overruled. If defendants do not care to plead further, the question will be as to the decree. Before entering

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Express Co. v. Rattermann.

it, the receipts should be separated into state and interstate receipts. I believe this has been done. If not, a master may be appointed to determine the proper division. The decree enjoining collection of tax on interstate receipts, can only be entered on condition that the taxes on state receipts are paid. This has been done. The decree will be entered therefore, as indicated. Both parties have claimed more than they were entitled to in this case. The plaintiff has been found entitled to relief, but not for so much as he asked. The costs are in the discretion of the I will divide them equally between the parties. Creppen v. Hermaance, 9 Paige, 210.

The three remaining petitions are to recover taxes paid by plaintiffs on gross receipts from the entire business, domestic and interstate, in December, 1886, and in June, 1887. The following is the material allegation of the petition of the Adams Express Company. "In the month of May, 1886, the plaintiff delivered to the auditor of said county a statement as required by Rev. Stat. Ohio, sec. 2778, showing the receipts of said plaintiff in said county, for the year next preceding, in the carrying on of its said business, which said gross receipts amounted to the sum of $49,283, a large portion of which was for business done by the plaintiff between its offices in said county and points outside of the state of Ohio. That is to say, said receipts were largely for business and transportation pertaining to commerce between the states, and not for business and transportation between different points within the state of Ohio. And thereupon said auditor assessed a tax on said receipts for said year, amounting to $1,249.28. And the defendant required the plaintiff to pay the same; and the plaintiff did make payment thereof, to-wit; one-half thereof $624.64 on December 20, 1886, and a like amount on June 20, 1887. At the time of making said payment, the plaintiff duly protested against said tax on the ground that the same was unlawful and in violation of the constitution of the United States, and said payment was made by the plaintiff to avoid the penalties, disabilities and punishments provided by Rev. Stat., Ohio sec. 2843, which the defendant would otherwise have enforced to the interference, stoppage and destruction of the plaintiff's business." Then follows the allegation that the taxes were illegal and void, and a prayer for the recovery with interest.

To this petition and the two others of similar character, defendant demurs on the ground that the facts stated do not constitute a cause of action. It is claimed by counsel for the defendant, first, that under the facts alleged, the payment of the taxes was voluntary and they can not therefore be recovered back; and second, that even if payment was involuntary, the course of decisions upon the question of the legality of the tax by the Supreme Court of the United States, by which it was declared legal in 1868 and illegal in 1888, has been such as to create an estoppel against the recovery of taxes levied, collected, distributed and expended on the faith of the judgment of the highest tribunal, that they were valid.

Section 5848 provides that courts of common pleas and superior courts shall have jurisdiction to enjoin the illegal levy of the taxes and assessments, or the collection of either, and of actions to recover back such taxes or assessments as have been collected, without regard to the amount thereof; but no recovery shall be had unless the action be brought within one year after the taxes or assessments are collected.