Effect of receiving bank checks by treasurer.

SEC. 2744. A county treasurer may receive checks, but such receipt shall in no manner be regarded as payment. No sum shall be considered paid until the money therefor has been received by the treasurer or a depositary. No responsibility shall attach in any manner directly or indirectly to a treasurer, his sureties or the county by reason of the receipt of a check and collection of checks shall be entirely at the risk of the person turning them into the treasury. (99 v. 468, § 13.)

Referred to and held to be constitutional: State, ex rel., v. Commissioners, 4 O. N. P. (N. S.) 481, 17 O. D. (N. P.) 451 [affirmed, State, ex rel., v. Oviatt, 8 O. C. C. (N. S.) 567.]

County treasurer may open tax-receiving offices.

SEC. 2746. When, in his opinion, necessary, the county treasurer may open not to exceed one office in each township for the receiving of taxes. Such office shall be in a city or village in which is located a bank of deposit. The treasurer, his deputy or clerks, may attend at such office and receive taxes on any day or days prior to the twentieth day of June and the twentieth day of December of each year. They may remove from the county treasury to the place of collection records necessary for the receiving of taxes upon the day or days so fixed for that purpose. (100 v. 76, § 1.)

Notice to taxpayer.

SEC. 2747. The county treasurer may fix the time when and place at which taxes will be received, as provided in the preceding section. Two weeks' notice thereof shall be given by publication in a newspaper of general circulation in the corporation or township within which the place of collection is located and by posting notices thereof in four public places therein. (100 v. 76, § 2.)

SEC. 2656. When one-half of the taxes 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 being so charged, or when the remainder of such tax is not paid on or before the twentieth day of June next thereafter, the county treasurer shall proceed to collect it by distress or otherwise together with the penalty of five per cent. on the amount of tax so delinquent, which penalty shall be paid into the treasurer's fee fund. (R. S. Sec. 1094.)

It was held that the treasurer was not entitled to the five per cent. penalty in a suit brought by the prosecuting attorney in Hartman v. Hunter, 8 O. C. C. 623, 4 Ó. C. D. 200. [This case was reversed by Hartman v. Hunter, 56 O. S. 175, on the ground that the entire cause of action, an assessment for the construction of a township ditch, was barred within six years from the time that the cause of action accrued by G. C. § 11222.] See G. C. 2670.

The expense of attorney's fees in a suit by a county treasurer to collect taxes is one of the expenses which the county commissioners are required to allow: State, ex rel., v. Commissioners, 26 O. S. 364.

After delinquent assessments for street improvements have been certified to the county auditor, they are in the hands of the county treasurer for collection, and the municipal corporation can not then bring action thereon: Fremont v. Hayes, 4 O. N. P. 379, 7 O. D. (N. P.)

263.

The penalty of five per centum as compensation to county treasurers, provided in this section, 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: Hunter v. Borek, 51 Ó. S. 320.

To entitle county treasurers to the commission of five per cent., allowed under this section, they must proceed to collect and must in fact collect the delinquent taxes by distress; or under the provisions of G. C. §§ 2660, 2665 and 2667 to 2673; or by special effort in person or through an agent: Hunter v. Borck, 51 O. S. 320.

Collection of overdue taxes by distress.

SEC. 2658. When taxes are past due and unpaid, the county treasurer may distrain sufficient goods and chattels belonging to the person with such taxes, if found within the county, to pay the taxes so remaining due and the costs that have accrued. He shall immediately advertise in three public places in the township where the property was taken the time and the place it will be sold. If the taxes and costs accrued thereon are not paid before the day appointed for such sale, which shall be not less than ten days after the taking of the property, the treasurer shall sell it at public vendue or so much thereof as will pay such taxes and the costs. (R. S. Sec. 1095.)

This provision does not violate the constitutional rights of a foreign insurance company. nor does it deprive it of its property without due process of law: Insurance Co. v. Bowland, 196 U. S. 611, 14 O. F. D. 543, 2 O. L. R. 515.

Distress is one of the most ancient methods of enforcing the payment of taxes known to law, and it has frequently received the sanction of the courts: Insurance Co. v. Bowland, 196 U. S. 611, 14 O. F. D. 543, 2 O. L. R. 515.

Before there can be a recovery by action on a distress, it must appear to have been required under some law of the state that the property levied on should have been returned for taxation: Insurance Co. v. Bowland, 196 U. S. 611, 14 O. F. D. 543, 2 O. L. R. 515.

If a county treasurer seizes property to pay a tax assessed without any color of law for its assessment, or under an unconstitutional law, he is liable as a trespasser; but where there is a valid law for the tax, and the illegality of the particular assessment is, owing to some error or omission of those charged with the execution of the law prior to the treasurer's being called upon to act, and the duplicate is regular on its face, and duly certified, he is not liable for collecting the tax. In such a case the duplicate affords as ample protection to the treasurer as does an execution, regular on its face, to the sheriff: Loomis v. Spencer, 1 O. S. 153; Thompson v. Kelly, 2 O. S. 647; Bank v. Smith, 7 O. S. 42.

A claim for over-due taxes on personal property in the hands of a receiver is a lien thereon, entitled to priority over general creditors: Hamilton v. Beggs Co., 7 O. L. R. 397.

If a taxpayer believes that a tax is illegal, he may test the validity thereof by a suit to enjoin the collection thereof: Aultman & Taylor Co. v. Brumfield, 102 Fed. 7, 10 O. F. D. 227. This section, together with G. C. §§ 2659 to 2662, apply to personal property, and do not apply to an action to collect taxes on real property: State, ex rel., v. Gibson, 1 O. N. P. (N. S.) 565, 14 O. D. (N. P.) 513 [affirmed, without report, State, ex rel., v. Gibson, 70 O. S. 424j.

The remedy of distraint for taxes given to the county treasurer, under section 2658, G. C., is by far the most effective and all means should be exhausted by the county treasurer before calling upon the prosecuting attorney to conduct litigation. It is within the power of the prosecuting attorney to mandamus the county treasurer and thereby compel him to do his duty, under section 2658, G. C. A. G. R. 1913, p. 1233.

Under the provisions of section 2658, G. C., it is the duty of the county treasurer, acting in person or through his deputy, to distrain sufficient goods and chattels belonging to a person charged with delinquent personal taxes, if such goods and chattels can be found in the county, to pay such taxes and accrued costs, and, upon such distraint being made, it is his duty to advertise and sell said goods and chattels, or so much thereof as will pay said taxes and costs in the manner provided in said section, provided said taxes and costs are not paid by the owner of said property before the day appointed for said sale. The county treasurer is neither required nor authorized by the provisions of section 2658, G. C., to resort to a justice's court for the purpose of collecting delinquent personal taxes. A. G. R. 1915, p. 617.

Fees for sale by distress.

SEC. 2659. For making distress and sale for the payment of taxes, the treasurer shall be allowed the same fees as are allowed to constables for making levy and sale of property on execution. Traveling fees shall be computed from the seat of justice of the county to the place of making the distress. (R. S. Sec. 1096.)

Proceedings when unable to collect taxes by distress.

SEC. 2660. If the county treasurer is unable to collect by distress taxes assessed upon a person or corporation or an executor, administrator, guardian, receiver, accounting officer, agent or factor, he shall apply to the clerk of the court of common pleas in his county at any time after his semi-annual settlement with the county auditor, and the clerk shall cause notice to be served upon such corporation, executor, administrator, guardian, receiver, accounting officer, agent or factor, requiring him forthwith to show cause why he should not pay such taxes. If he fails to show sufficient cause, the court at the term to which such notice is returnable shall enter a rule against him for such payment and the costs of the proceedings, which rule shall have the same force and effect as a judgment at law and shall be enforced by attachment or execution or such process as the court directs. (R. S. Sec. 1097.)

Inder this section, the treasurer of a county may have a rule against the receiver of a railroad for the payment of taxes due and unpaid. The state is not included in G. C. 9066, and for this reason a superiority of its claim is not affected thereby: Treasurer v. Dale, 60 O. S. 180.

If a tax is collected under the provisions of this section, the five per cent penalty as compensation to the treasurer is to be allowed: Hunter v. Borck, 51 O. S. 320.

In a proceeding under this section, the individual name of the treasurer need not appear as the plaintiff. Whether his individual name so appears or not, the proceeding does not abate by reason of a change of officers. The court may continue such proceeding beyond the term. In such proceeding only the tax and the penalty can be recovered: Bridge Co. v. Mayer, 31 O. S. 317. Reasonable compensation for attorneys' fees in prosecuting suits, which it is the duty of the treasurer to bring for the collection of taxes, come within the expenses which the county commissioners are required to allow State, ex rel., v. Commissioners, 26 O. S. 364. For case involving a rule to show cause why a corporation should not pay a tax, see Knoup v. Bank, 1 0. S. 603.

Duty as to non-resident delinquent on personal property.

SEC. 2661. In making return of the delinquent list of personal property to the auditor. the treasurer shall note on the margin thereof the county and state to which the delinquent taxpayer has removed, or in which he resides, with the date of his removal, if able to ascertain such fact. (R. S. Sec. 1098.)

Shall send account of taxes to the treasurer of non-resident's county.

SEC. 2662. Immediately after the settlement with the county auditor, the treasurer shall make and forward to the treasurer of the county to which a delinquent taxpayer has removed, or in which he resides, a statement of taxes so assessed and not paid, specifying the value of the property on which levied, and the amount levied thereon, to which he shall add twenty-nve per cent. of the tax so levied, if such taxpayer left the county in which such taxes were levied after the time required by law for the county auditor to deliver the tax duplicate to the county treasurer. If he left the county previous to such time, the treasurer shall not add the twenty-five per cent. (R. S. Sec. 1099.)

Collection of such taxes.

SEC. 2663. Immediately on the receipt of such statement, the county treasurer shall collect such taxes and per cent. from the person so charged, for which services he shall be allowed the same fees as county treasurers for collecting delinquent taxes by process, to be collected from the person against whom such taxes are charged. (R. S. Sec. 1100.)

Return of treasurer to whom account is sent.

SEC. 2664. For the collection of all taxes, penalties, and costs, mentioned in the preceding section, the county treasurers shall have the same powers given by any law for the collection of taxes. All taxes collected by any county treasurer pursuant to the provisions of such section shall be by him transmitted, in the safest and most convenient way, to the treasurer of the county to which such taxes belong. At the same time he shall forward a statement to the auditor of the county of the amount so collected and from whom. If he is unable to collect such taxes, he shall return the original statement to the auditor of the county from which it was sent, with his official certificate why they could not be collected. (R. S. Sec. 1101.)

The statement, "payment not tendered," in the official certificate showing why the tax could not be collected, is not a sufficient reason for placing the property on the delinquent list: Matthews v. Lewis, 18 O. C. C. 134; sub nomine, Mathers v. Lewis, 9 O. C. D. 873.

Proceedings where delinquent taxpayer has dues within the state.

SEC. 2665. If a person charged with a tax has not sufficient property which the treasurer can find to distrain to pay such tax, but has moneys, or credits due, or coming due him from any person within the state, known to the treasurer, or if such taxpayer has removed from the state or county, and has property, moneys, or credits due, or coming due him in the state, known to the treasurer, in every such case, the treasurer shall collect such tax and penalty by distress, attachment, or other process of law. He may make affidavit that the residence of such taxpayer is to him unknown, or that he is not a resident of the county where such property is found or where such debtor resides, or that such taxpayer has not property in the county sufficient to distrain to pay such tax. Thereupon an attachment, with garnishee process, shall be issued and such proceedings had, and such judgment rendered for taxes, penalty, and costs, as are lawful in other cases of attachments. If the treasurer serves upon any person indebted to such taxpayer a written notice, stating the amount of delinquent tax and penalty due, such debtor may, after the service of such notice, pay such tax and penalty to the treasurer, whose receipt therefor shall be a full discharge of so much of the indebtedness, as equals the tax and penalty so paid. (R. S. Sec. 1102.)

If the county treasurer proceeds, under this section, to collect a tax in accordance with the provisions thereof, he is entitled to the five per cent compensation on delinquent taxes: Hunter v. Borck, 51 O. S. 320.

A statute which provides that in an action to enforce an assessment, "a substantial defect in the construction of the improvement shall be a complete defense," undoubtedly applies in an action by the treasurer to collect such assessment: Stone v. Viele, 38 O. S. 314.

The county treasurer may not contract with an attorney to collect delinquent taxes on real estate, or employ a collector to collect delinquent personal taxes.

The expenditure of public funds for such purpose would be illegal, and if such expenditure has been made it is the duty of the prosecuting attorney, under provision of section 2921, G. C., to bring an action in the name of the state to recover for the use of the county such funds' so illegally drawn from the county treasury. A. G. R. 1915, p. 2026.

May collect delinquent tax charged to him.

SEC. 2666. If a county treasurer, on making settlement with the county auditor, stands charged with any tax which remains unpaid, and receives no credit therefor in such settlement, the treasurer may collect such tax for his own use, at any time within one year after the settlement, either by distress and sale, or by action, in his own name, before any justice of the peace or court having jurisdiction thereof. (R. S. Sec. 1103.)

Action by treasurer for unpaid taxes or assessments.

SEC. 2667. When taxes or assessments, charged against lands or lots or parcels thereof upon the tax duplicate, authorized by law, or any part thereof, are not paid within the time prescribed by law, the county treasurer, in addition to other remedies provided by law may, and when requested by the auditor of state, shall enforce the lien of such taxes and assessments, or either, and any penalty thereon, by civil action in his name as county treasurer, for the sale of such premises, in the court of common pleas of the county, without regard to the amount claimed, in the same way mortgage liens are enforced. (R. S. Sec. 1104.)

Taxes levied under the Dow law are a lien prior to mortgages, which antedate such taxes in point of time: Trust Co. v. Stich, 71 O. S. 459.

The state is not liable for any part of the expenses of a county treasurer in collecting taxes, except where the statute expressly creates such liability. Under this section and the following sections through G. C. § 2673, the state is not liable: State ex rel., v. Cappeller, 39 O. S. 207.

An action to enforce the lien of an assessment, commenced within six years of the passage of the act authorizing such action, if such assessment shall so long continue to be a leín upon the property, is not barred by the statute of limitations: Brenchweh v. Drake, 31 O. S. 652. That an action to enforce an assessment for the construction of a township ditch was barred in six years after the cause of action arose, under G. C. § 11222, was decided in Hartman v. Hunter, 56 O. S. 175.

Advancement of case.

SEC. 2668. Upon the application of the plaintiff, the court of common pleas shall advance such causes on the docket, so that they may be first heard. (R. S. Sec. 1104.)

Petition and evidence.

SEC. 2669. Having made the proper parties, it shall be sufficient for the treasurer to allege in his petition that the taxes and assessments, or either, are charged on the tax duplicate against such premises, the amount thereof, and are unpaid, and he shall not be required to set forth in the petition any other or further special matter relating thereto. On the trial a certified copy of the entry on the tax duplicate, shall be prima facie evidence of such allegations and of the validity of such taxes and assessments. (R. S. Sec. 1104.)

If the defendant admits that part of the tax was valid, he must allege in his answer, the facts which make the rest of such tax illegal or such answer is insufficient as the defense to any part of the tax: Hunter v. Austin, 9 O. C. C. 583, 6 O. C. D. 480.

A petition to enforce a tax is good as against demurrer, unless it appears on its face that under the existing laws, the property which is listed for taxation is not subject thereto : Scott v. Athens, 1 O. N. P. 94, 1 0. D. (N. P.) 84. (A township hall erected by a village and paid for by taxation was held to be subject to taxation, if leased for private purposes.)

Judgment and decree.

SEC. 2670. Judgment shall be rendered for such taxes and assessments, or any part which the court shall order such premises to be sold without appraisement. From the proceeds of the sale the costs shall be first paid, next the judgment for taxes and assessments, and the balance shall be distributed according to law. The owner or owners of such property shall not be entitled to any exemption against such judgment, nor shall any statute of limitations apply to such action. When the lands or lots stand charged on the tax duplicate as forfeited to the state, it shall not be necessary to make the state a party, but it shall be deemed a party through and represented by the county treasurer. (R. S. Sec. 1104.)

In an action by the county treasurer to collect personal taxes, the six years' period of limitation prescribed by G. C. § 11222, does not apply, since such action, while brought in the name of the treasurer, is prosecuted in the interests of the state and for its benefit: Wasteney v. Schott, 58 O. S. 410 [distinguishing Hartman v. Hunter, 56 O. S. 175.]

Joinder of causes of action.

SEC. 2671. In such proceedings the county treasurer may join in one action all or any number of lots or lands, but the decree shall be rendered severally or separately, and any proceedings may be severed in the discretion of the court for the purpose of trial, error or appeal, where an appeal is allowed, and the court shall make such order for the payment of costs as shall be deemed equitable and proper. (R. S. Sec. 1104.)

Contract for collection of unpaid taxes or assessments.

SEC. 2672. When lands or lots or parcels thereof, advertised for and offered at both delinquent and forfeited tax sales and returned as unsold at both, have become forfeited to the state by reason of the unpaid taxes thereon, the county treasurer may contract with