Wheeling & Lake Erie Railway Co. v. Wolfe

This is a proceeding to reverse the judgment of the common pleas court of Sandusky County, and we have come to the conclusion that that judgment should be modified in some respects, and will indicate, so that counsel may prepare an entry, the extent of those modifications.

1. We hold, following the opinion of the circuit court of Harrison county, in W. & L. E, R’y. Co. v. Stewart, treasurer, that the plaintiff below is not entitled to recover anything by way of penalties upon the taxes charged, either for the 10 per cent, added to the delinquent taxes, so-called, or the 5 per cent, claimed by the treasurer as due him for collection; and we refer to the opinion of Judge Frazier in the case cited for our reasons for this holding.

2. We are of the opinion that the taxes levied do not draw interest from the time they were payable or from the commencement of the action, nor until judgment is rendered. The allowance by the statute of penalties is intended, we think, to cover interest until the claim has gone into judg*375ment; and for the reasons that we disallow the penalties, we think also interest should be disallowed. Therefore, the amount of the judgment will be computed without any allowance of interest, the judgment drawing interest from the date when it was originally rendered — that is, from the first day of the November term, 1896.

3, We are also of the opinion that the judgment was erroneous, because it included certain amounts levied to pay deficiency bonds, or bonds issued for deficiency purposes. These amounts are stated to be $97,50 in 1894,and $121.70 in 1895. We find no -provision of law authorizing that levy. Those bonds were issued pursuant to an act of March 13, 1894, which authorized the issuing of $50,000 of bonds “to pay deficiencies existing in-the various funds of said county.” Without an express provision of the legislature authorizing that kind of a levy, we think it is not permissible. These bonds were issued for no improvement or purpose authorized by law, but to delay payment of the deficiency where different funds had been overdrawn; and we think the county must rely upon it's levies authorized by law for these several funds to provide the means with which to pay these bonds, in the absence of express legislation on that subject. Therefore, to that extent, the judgment will be modified.

Each party to pay one-half of the costs taxed in the court of common pleas and in this case, including the referee’s and stenographer’s bill.