SEC. 5678. If one-half the taxes charged against an entry of real estate is not paid on or before the twentieth day of December, in that year, or collected by distress or otherwise prior to the February settlement, a penalty of fifteen per cent. thereon shall be added to such half of said taxes on the duplicate. If such taxes and penalty, including the remaining half thereof, are not paid on or before the twentieth of June next thereafter, or collected by distress or otherwise prior to the next August settlement, a like penalty shall be charged on the last half of such taxes. The total of such amounts shall constitute the delinquent taxes on such real estate to be collected in the manner prescribed by law. (R. S. Sec. 2844.)

Under the provisions of section 5678, General Code, a penalty of 15 per cent. may be charged for failure to pay the second half of the year's taxes, although the first half has been duly paid. A. G. R. 1914, p. 703.

General Code § 2608 and this section when construed together authorize the imposition of the penalty of fifteen per centum for the first default in the payment of taxes upon real property; and they do not permit the assessment of a penalty on the same taxes, or a penalty thereon in any succeeding year or years, by reason of the continued nonpayment of such taxes and penalty: White v. Woodward, 44 O. Š. 347; Hunter v. Borck, 51 O. S. 320.

Property which is not exempt from taxation which has escaped taxation for a number of years because it is claimed to be exempt, is liable for such back tax and the penalties provided in this section: Watterson v. Halliday, 2 O. N. P. (N. S.) 693, 15 O. D. (N. P.) 271.

Same.

SEC. 5679. If the total amount of delinquent taxes and penalty as provided in the next preceding section, together with one-half of the taxes charged against such real estate for the current year, is not paid on or before the twentieth day of December, of the same year, the delinquent taxes and penalty, and the whole of the taxes of the current year, shall be due, and be collected by the sale of the real estate, in the manner authorized by law. If the first half of the taxes charged upon any real estate is paid on or before the twentieth day of December, as provided by law, but the remaining half thereof is not paid on or before the twentieth day of June next thereafter, or collected by distress or otherwise, prior to the next August settlement, as provided by law, a like penalty shall be added to such unpaid taxes, and they shall be. treated as delinquent taxes, and, with the taxes of the current year, collected by the sale of such real estate, as aforesaid. (R. S. Sec. 2844.)

SEC. 2608. This section when construed together with sections 5678 and 5679, authorize the imposition of a penalty of 15 per cent. for the non-payment of taxes assessed and levied on a tract or lot of land for the first default in payment thereof. White v. Woodward, 44 O. S., 347.

Duplicate of unpaid personal property tax to be made.

SEC. 5694. Immediately after each semi-annual settlement in August, the county auditor shall make a tax list. and duplicate thereof. of all the taxes on personal property remaining unpaid, as shown by the treasurer's books. and the delinquent record as returned by him to the auditor. Such tax list and duplicate shall contain the name, valuation, and amount of personal property taxes, with ten per cent. penalty thereon, due and unpaid. He shall deliver the duplicate to the treasurer on the fifteenth day of September, annually. (R. S. Sec. 2855.)

The penalty cannot be imposed unless the duplicate shows the entry made by the auditor which is herein provided for: Lee v. Sturges, 46 O. S. 153.

If part of the taxes are valid and part are invalid, and the taxpayer is not given an opportunity to pay the valid part without also paying the invalid, the ten per cent penalty cannot be imposed: Railway v. Stewart, 13 O. C. C. 359, 7 O. C. D. 193.

In making up annually the delinquent tax duplicate required by this section, the county auditor is required to enter on such duplicate only the taxes on personal property remaining unpaid, as shown by the treasurer's books and the delinquent record as returned by him to the auditor at the time of his next preceding semi-annual settlement in August: State, ex rel., v. Smith, 71 0. S. 13.

This section does not apply where one voluntarily reports back taxes as due and owing from himself: Topliff v. Shields, 1 0. D. (N. P.) 551.

The duplicate herein provided for cannot be delivered to the treasurer for collection before the fifteenth day of September: Van Nest v. Brooks, 11 Dec. Rep. 228, 25 Bull. 301.

Collection of taxes and penalties.

SEC. 5695. The county treasurer shall forthwith collect the taxes and penalty on the duplicate by any of the means provided by law, and the funds so collected shall be distributed in proper proportions to the appropriate funds.

The duplicate of the taxes which is delivered to the treasurer is his warrant of authority for collecting the various levies found against the entry thereon, together with the interest and the penalty which may accrue, or may have accrued: Hoglen v. Cohan, 30 O. S. 436.

If the delinquent taxes are voluntarily paid before June 20th and December 20th, the five per cent penalty is not allowed to the treasurer: Topliff v. Shields, 1 0. D. (N. P.) 551 [affirmed, without report, in Shields v. Topliff, 54 O. S. 683]. See, also, G. C. § 2656.

The county treasurer, in the collection of the tax charged upon his duplicate, acts as a ministerial officer, and is protected by his duplicate, in an action of trespass, for acts done in its collection, under the same circumstances which would enable a ministerial officer to justify by virtue of process: Bank v. Smith, 7 O. S. 42; see, to the same effect, Loomis v. Spencer, 1 O. S. 153; Thompson v. Kelly, 2 O. S. 647.

The rule that statutes of limitation do not run against the state unless it is expressly so provided, is applicable in actions where the state, though not a party to the record, is the real party in interest: Wasteney v. Schott, 58 O. S. 410 [affirming Schott v. Wasteney, 13 O. C. C. 339, 7 O. C. D. 222.]

SEC. 2656. See this section for the 5 per cent. payable to county treasurers as com-, pensation for collecting delinquent personal property taxes.

Reading of list of delinquents; employment of collectors.

SEC. 5696. The county commissioners, at each September session, shall cause the list of persons delinquent in the payment on personal property to be publicly read. If they deem it necessary, they may authorize the treasurer to employ collectors to collect such taxes or part thereof, prescribing the compensation of such collectors which shall be paid out of the county treasury. All such allowances shall be apportioned ratably by the county auditor among all the funds entitled to share in the distribution of such taxes. (R. S. Sec. 2858.)

County commissioners have no jurisdiction to authorize a county treasurer to employ a collector to collect personal delinquent taxes under this section, until they first cause the delinquent list to be publicly read as provided in this section. An appointment of such collector can be authorized only for the collection of the whole or any part of the delinquent list which has been caused to be so publicly read: Commissioners v. Arnold, 65 O. S. 479. There is no authority under this section to employ a collector to collect future delinquent lists: Commissioners v. Arnold, 65 O. S. 479.

Under this section, the county commissioners must prescribe the compensation of the tax collector definitely before collections are made. It is not sufficient to prescribe that the compensation shall not exceed a certain amount or a certain percentum: Commissioners v.

Arnold. 65 O. S. 479.

Under this section the county treasurer may appoint as many collectors as he may see fit. Such appointment is made by the treasurer, and not by the commissioners: and the authority of the collector ceases with the expiration of the term of the treasurer: Brady v. French 6 O. N. P. 122, 9 O. D. (N. P.) 195.

See G. C. 5624-10 and 5624-11, (106 v. 269, §§ 90 and 91), for powers of the tax commission to remit taxes and penalties illegally assessed.

Jurisdiction of courts of common pleas and superior.

SEC. 12075. Common pleas and superior courts may enjoin the illegal levy or collection of taxes and assessments, and entertain actions to recover them back when 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. (R. S. Sec. 5848.)

An additional or enlarged remedy is given to the taxpayer under this statute. While the action under it is still equitable in its nature, a remedy is afforded by it which formerly might be had only at law: Tone v. Columbus, 39 O. S. 281; Stephan v. Daniels, 27 O. S. 527; Steese v. Oviatt, 24 O. S. 248.

To provide a proper remedy was the object of this law. It was a legislative recognition of a fundamental duty enjoined by the constitution of the state, that while the power to tax was essential to government, the duty of protecting the citizen from illegal exactions under the name of taxes, and under the forms of law, was not to be forgotten or neglected. It being therefore, remedial in its character, it should receive that construction, if the words will reasonably admit, that will effect the manifest intention of the legislature, and remedy the evil.

It gives a remedy by injunction, on the application of a single person taxed, when none existed before. In his application he need not aver and show, as under ordinary rules in equity, that great or irreparable injury is about to be done for which he has no adequate remedy at law, but only that the tax is illegal which is about to be assessed or collected.

It thus beomes apparent that a new equitable remedy was given by this statute." Stephen, Treas., v. Daniels, 27 O. S. 535.

This section and not G. C. § 12241 provides the method for testing the validity of a tax or assessment: Musser v. Adair, 55 O. S. 466; Stemen v. Hizey, 19 O. D. (N. P.) 155.

This section is not revoked by the passage of the Willis law (G. C. §§ 5522 and 5524). and if a taxpayer may invoke the aid of the courts to determine the legality of the action of the board of appraisers, the state may likewise invoke the same aid for the same purpose: State v. Bridge Co., 18 Q. D. (N. P.) 273.

This section applies to an action to recover back the excessive part of a street assessment: Groesbeck v. Cincinnati, 51 O. S. 365.

Both under G. C. § 12075 and upon general principles, aside from such statute, a federal court in Ohio may entertain a suit to enjoin the enforcement of a special assessment made under a rule or system in violation of the constitution of he United States: Norwood v.

Baker, 172 U. S. 269.

Where a statute of a state creates a new right or provides a new remedy, the federal courts will enforce that right either on the common law or equity side of the docket, as the nature of the right or remedy requires: Cummings v. Bank, 101 U. S. 153.

The rights conferred by this statute will be enforced by the federal courts: Hubbard, 106 Fed. 809, 45 Č. C. A. 66, 13 O. F. D. 508

Bank v.

It will be enforced by the federal courts acting as courts of equity: Norwood v. Baker, 172 U. S. 269; Bank v. Dodge, 197 U. S. 70; Lander v. Bank, 118 Fed. 785, 55 C. C. A. 523, 14 O. F. D. 54.

A tax can not be justified merely upon equitable considerations. Public burdens of that nature can be sustained only when authorized by positive law. And when such burden is illegally imposed, it is a statutory right of the party against whom it is charged to stay its collection by injunction: Markle v. Newton, 64 O. S. 493.

Injunction will not lie where errors and irregularities could have been remedied by a petition in error, as in the case of county commissioners' proceedings in two-mile pike cases, if the error appeared in the record: Lewis v. Laylin, 46 O. S. 663.

Injunction will not lie where errors and irregularities may be reviewed by petition in error, and is not a proper procedure to correct errors in proceedings of township trustees: Haff v. Fuller, 45 O. S. 495.

Failure to give notice of assessment proceedings is ground for enjoining the collection of assessment levied without such notice: Joyce v. Barron, 67 0. S. 264.

An assessment for a county ditch, under a proceeding of which the landowner had neither notice nor knowledge, is illegal, and its collection may be perpetually enjoined: Railway v. Wagner, 43 O. S. 75.

Although a valuation made or added by taxing officers in good faith is conclusive in the absence of gross mistake, yet the liability to be taxed at all is not thus concluded, and G. C. § 12075, giving an injunction, protects the citizen the same as if an appeal were given: Hagerty v. Huddleston, 60 O. S. 149.

Courts of equity have full authority to review the decision of the auditor, where the foundation of the right to tax is challenged. case only: Kraay v. Gibson, 2 O. N. P. (N. S.) 537, [affirmed, Gibson v. Kraay, 17 0. D. The action of the auditor makes a prima facie (N. P.) 218, 3 O. L. R. 671].

A taxpayer has no right, after voluntary payment, to enjoin an unconstitutional road tax: State ex rel., v. Commissioners, 56 O. S. 718.

Where a person pays on an illegal increase of valuation the first half of the taxes without protest, and this amounts to more than the entire year's proper taxes, an injunction will be granted against any part of the last half, although he intended the payment made as the half taxes only: Cozad v. Hubbard, 18 O. C. C. 294, 10 O. C. D. 162.

Payment of an illegal tax by plaintiff after dissolution of an injunction will not prevent plaintiff from prosecuting error to test the validity of the tax when other taxes for later years are to be levied under the same law: Railway v. Martin, 53 O. S. 386.

Several lot owners may join to restrain an invalid street assessment, and, if numerous, one may sue on behalf of himself and all whom he is authorized to represent: Upington v. Oviatt, 24 O. S. 232; Quinlan v. Myers, 29 O. S. 500.

A taxpayer may bring action to enjoin collection of tax levied for payment of bonds issued under an unconstitutional act: Counterman v. Dublin, 38 O. S. 515.

The plaintiff seeking to enjoin the collection of an assessment must show the invalidity of the tax or assessment by proper averments and proof: Bolton v. Cleveland, 35 O. S. 319. The plaintiff is not required to make out a case in every element which would be necessary without it to entitle him to equitable relief; it is sufficient if he shows that the tax or assessment is illegal: Tone v. Columbus, 39 O. S. 281; Stephen v. Daniels, 27 O. S. 527; Steese v. Oviatt, 24 O. S. 248.

The burden of establishing a right to a perpetual injunction against the collection of an assessment is upon the party who claims to be entitled to the injunction: Spangler v. Cleveland, 43 O. S. 526.

Voluntarily paid taxes without protest or objection are not recoverable. after December 20th, without effort by the treasurer to collect or enforce payment, but re Taxes paid ceived in the usual course when offered, are voluntarily paid: Wilson v. Pelton, 40 O. S. 306. Payments made under a mistake of facts without consideration are recoverable: Woolley v. Staley, 39 O. S. 354.

Payment of taxes under a belief justified by the circumstances that there is a legal charge on the property, when there is no such charge on the duplicate and no legal or moral obligation to pay, is recoverable as made under a mistake of facts: Woolley v. Staley, 39

O. S. 354.

Fayments made under a mistake of law can not be recovered back: McCarty v. Toledo, 11 O. C. C. 67, 5 O. C. D. 88.

Voluntary payments of an assessment under a law subsequently declared unconstitutional can not be recoevred back: State, ex rel., v. Bader, 56 O. S., 718.

Payments which are involuntary may be recovered back. illegal demand involuntary, it must be made to appear that it was to release the person t To make the payment of an property from detention or to prevent the seizure of either by the other party having apparent authority to do so without resorting to an action at law: Mays v. Cincinnati, 1 O. S. 268.

The ruling in Mays v. Cincinnati, 1 O. S. 268, was modified in Baker v. Cincinnati, 11 S. 534, where it was held that a payment may be involuntary, if there be an immediate and urgent necessity or the payment is made for the purpose of redeeming or preserving one's

property.

The payment of a tax to avoid a penalty provided by statute, when made under protest with notification of an action to recover such tax, is not voluntary, and an action for recovery may be maintained if the tax is illegal: Telegraph Co. v. Mayer, 28 O. S. 521; Ratterman v. Express Co., 49 O. S. 608.

To recover illegal taxes the payment must be involuntary, and, where the treasurer is about to levy, a simple protest and notice of intended suit is not sufficient: Whitbeck v. Minch, 48

O. S. 210; see Marietta v. Slocomb, 6 O. S. 471.

Payment of an illegal assessment under protest without waiting for it to be returned delinquent, and the land advertised for sale is not voluntary: Higgins v. Pelton, 7 Dec. Rep.

661, 4 Bull. 751.

An action to recover back an excess of assessment over cost of improvement must be brought within one year, though the illegality was not then known: Groesbeck v. Cincinnati,

51 O. S. 365.

An assessment for more than is necessary is illegal as to the excess, and hence the prop the excess was caused by a mistake in calculation and the payment was in ignorance of it: erty owner who paid it can not recover back the excess after a year under this section, although

Groesbeck v. Cincinnati, 51 O. S. 365.

ments, payable annually or otherwise, the limitation of time in which the action can be When, for the purpose of collection, an assessment is divided into two or more installe brought as provided in this section begins to run against such installments from the time of its collection and not from the collection of the last stallment: Pelton v. Bemis, 44 O. S. 51.

One taxpayer can not sue on behalf of himself and others to recover back payments of an illegal tax, but each must sue for himself: Trustees v. Thoman, 51 O. S. 285.

Suit may be maintained under this section on the ground that complainant was not at the time of the levy of such tax a resident of the county, as to render credits taxable therein: McKnight v. Dudley, 148 Fed. 204, 78 C. C. A. 162, 15 O. F. D. 288.

The record of a board of equalization is not conclusive, but only prima facie evidence, in an action by a taxpayer under this section challenging the legality of a tax or assessment: Hagerty v. Huddleston, 60 O. S. 149.

One who has erroneously paid taxes may, after the year has elapsed for recovering the same by suit under this section, proceed in mandamus against the auditor when that official has discovered taxes to have been erroneously paid within five years, to call the attention of the county commissioners to the fact, so that they may order a refunder: Hagerty v. State, ex rel., 14 O. C. C. 95, 7 O. C. D. 88.

That the taxes have been voluntarily paid is no defense to the proceeding in mandamus : Hagerty v. State, ex rel., 14 O. C. C. 95, 7 O. C. D. 88. Injunction lies against an arbitrary addition to a personal tax return without evidence. Lumber Co. v. Robinson, 1 App. 209.

Parties to actions to enjoin levy.

SEC. 12076. Actions to enjoin the illegal levy of taxes and assessments must be brought against the corporation or person for whose use and benefit the levy is made. If the levy would go upon the county duplicate, the county auditor must be joined in the action. (R. S. Sec. 5849.)

Parties to action to enjoin collection.

SEC. 12077. Actions to enjoin the collection of taxes and assessments must be brought against the officer whose duty it is to collect them. Actions to recover back taxes and assessments, must be brought against the officer who made the collection, or, if he be dead, against his personal representative. When they were not collected on the county duplicate, the corporation which made the levy must be joined in the action. (R. S. Sec. 5850.)

A suit against a county treasurer to enjoin an illegal tax is in its nature against the office rather than the person, and a change of incumbent does not abate it. The successor may be substituted: Railway v. Martin, 53 O. S. 386.

The action to recover back an assessment illegally collected by a county treasurer must be brought against such officer individually, and not in his official capacity: Hornberger v. Case, 9 Dec. Rep. 434, 13 Bull, 511; Herzberg v. Willey, 9 Dec. Rep. 426, 13 Bull. 334.

Amount admitted must be paid or tendered, and bond given.

SEC. 12078. If the plaintiff in an action to enjoin the collection of taxes or assessments admits that a part thereof was legally levied, he first must pay or tender the sum admitted to be due. When an injunction is allowed. bond must be given as in other cases. The injunction shall be a justification of the officers charged with the collection of such taxes or assessments for not collecting them. (R. S. Sec. 5851.)

If an injunction is asked against the collection of a tax on the ground that it is too large, an injunction will be granted only upon condition that the plaintiff pay a tax equal to that which might have been properly assessed: Frazer v. Liebern, 16 O. S. 614.

If the valid portion of an assessment can be ascertained, a court of equity will enjoin the collection of the illegal portion only upon the condition that the valid portion be paid: Ehni v. Columbus, 3 O. C. C. 494. 2 O. C. D. 283.

Refunding illegal tax assessments.

SEC. 12078-1. That if, by judgment or final order of any court of competent jurisdiction in this state, in an action not pending on appeal or error it has been or shall be adjudged and determined that any taxes or assessment or part thereof levied after January 1, 1910, was illegal and such judgment or order has not been made or shall not be made in time to prevent the collection or payment of such tax or assessments, then such tax or assessment or such part thereof as shall att he time of such judgment or order be then unexpended and in the possession of the officer collecting the same, shall be repaid and refunded to the person paying such tax or assessment by the officer having the same in his possession.