#### The State, ex rel. Bartlett, Pros. Atty., Appellee, *v.*The Buckeye State Bldg. & Loan Co., Appellant.

(Decided November 7, 1940.)

*335
      *Mr. Ralph J. Bartlett,*prosecuting attorney, and *Mr. R. P. Barnhart,*for appellee.

*Messrs. Wilson é Rector,*for appellant.

Geiger, J.

This case is before this court on an appeal on questions of law from a judgment of the Court of Common Pleas against the respondent for the sum of $11,098.50 alleged by the prosecuting attorney to have been illegally paid by the county treasurer to the respondent in repayment of penalties on certain property on which there had been a default in the payment of taxes.

The petition sets out 15 different causes, each claiming a separate sum due the county on account of the refund of the penalty to the respondent on separate parcels of real estate. The payments by the respondent into the county treasury were by the official act of the sheriff who, upon the sale of property upon which the respondent held a mortgage, paid into the county treasury the taxes due, whether delinquent or current and the penalties that had been assessed for the nonpayment of taxes as the same became due. While the respondent did not, as a corporation, pay the penalties into the county, the same were paid by the sheriff out of the money that otherwise would have been distributed to the respondent.

The amended petition sets up the official character of the relator and states that he brings the action under the authority of Section 2921, General Code.

It is alleged that on the 30th day of March 1933, the General Assembly passed Senate Bill No. 42 (115 Ohio Laws, 161), commonly known as- the Whittemore Act, which was approved by the Governor and after-wards was amended at various times as alleged in the petition, the last amendment thereof being Senate Bill No. 359 (116 Ohio Laws, pt. 2, 14).

It is alleged that Senate Bill No. 359, by Section 1 *336thereof provides, in substance, that any person required by law to pay real property taxes and assessments which have become delinquent prior to the September settlement of 1935, or any person holding a lien on such property may, at any time prior to the 31st day of December 1936, elect to pay the principal sum of such delinquent taxes and assessments except that no such person shall be entitled to make such election unless all taxes and penalties for the year 1935 have been paid in accordance with the provisions of Section 2653, General Code, “provided that in case a penalty and interest has been paid on account of delinquent taxes and/or assessments, for the first or second half of the year 1934, such penalty shall be refunded on order of the county auditor directed to the county treasurer provided the principal sum of such taxes and assessments is paid prior to the thirty-first day of December, 1936.”

The allegations as to the 15 separate causes of action are substantially the same with some variations which we will note. We will epitomize the first cause of action and also state any other additional pertinent matters appearing in the other causes of action. The first cause of action is to the effect that the auditor executed a voucher under Senate Bill No: 42 to the respondent drawn upon the treasurer in the amount named; that thé check issued by the treasurer bore the notation, “refund of taxes overpaid”; that such check was paid by the treasurer; that the amount thereof represented the refund made under color of Senate Bill No. 42 of penalty charges on real property paid through the sheriff’s offic'e by the order of the court, for moneys arising from the proceeds of judicial sales; that such refunding whs not provided for in Senate Bill No. 42; and that that bill was not in,force on the date of the refunding check.

*The*second cause of action relates to a like transac*337tion, being a penalty refund under Senate Bill No. 359. It is alleged that Senate Bill No. 359, in so far as it attempted to confer upon county auditors tbe authority to make a refund of penalties paid on delinquent taxes, is unconstitutional, and that such refunds were made without authority of law.

The subsequent causes of action are in identical language, but relate to different payments. In the 15th cause of action it is further stated that the Whittemore Acts suspended the operation of Section 5678, General Code, long in force in Ohio, which provided for a charge against the property of certain penalties and interest when taxes were delinquent.

It is further asserted that the Whittemore Acts suspended the operation of Section 2657, General Code, long in force in Ohio, also relating to the charge of taxes and penalties against delinquent property.

It is further asserted in the 15th cause of action that the Whittemore Acts are and were void and discriminatory and in contravention of Section 26, Article II of the Ohio Constitution, and were retroactive and in conflict with Section 28, Article II, and that the refunds were unauthorized. ■ It is asserted that the total amount drawn from the treasury by the respondent is $11,-098.50 for which judgment is asked.

A demurrer filed to the petition was overruled in part and sustained in part. By an entry the relator was granted leave to amend the amended petition by inserting as the last paragraph in the first cause of action a statement to the effect that if the payment was made by virtue of Senate Bill No. 359, that bill is unconstitutional and void and the refund made without authority of law, and by adding to the 9th and 15th causes of aetion a paragraph to like effect.

A demurrer filed to the amended petition as amended was overruled;'

Thereupon an answer to the amended petition as *338amended was filed, the first defense of which made certain admissions and alleged that the General Assembly-enacted Senate Bill No. 42, which was later amended and its application extended, and enacted Senate Bill No. 359; and that Senate Bill No. 42 made no provisions for refund of penalty.

The respondent denied that the payment to it represented a refund under the authority of Senate Bill No. 42, and alleged that it was made under authority of Senate Bill No. 359.

For answer to all the other causes of action the respondent denied that the payments or refunds were made without authority of law, and further denied in answer to the 15th cause of action that the Whittemore Acts are void, and that the refunds made to the respondent were unauthorized; or that any part thereof was paid to the respondent without authority.

As a second defense it is alleged that all the payments made to the respondent as alleged in the several causes of action were made by the county auditor upon the advice and direction of the prosecuting attorney with the approval of the Bureau of Inspection and under and by virtue of Senate Bill No. 359, “and before said Senate Bill had been declared to be unconstitutional by the judgment of any court. ” It is alleged that the payments were voluntarily made by the officials of Franklin county without any mistake of fact and without any duress or fraud, and are not recoverable by the relator for the benefit of the county. It is further alleged that the relator is estopped to claim that such payments were illegally made or to maintain an action thereon.

The relator demurred to the answer and the court found the demurrer well taken and sustained the same, and, the respondent not desiring to plead further, it was ordered that the relator recover a judgment against the respondent in the sum of $11,098.50.

*339An appeal was properly taken from the action of the court below to this court.

Errors are assigned to the effect that the court below erred in sustaining the demurrer to the answer of the respondent; in rendering judgment against the respondent, and in holding the payments made to the company were not voluntary; that the court erred in holding these payments were made under a statute which at the time did not authorize the same; and that the court erred in holding these payments were illegally made to the company and the county officials were not justified in making such payments. The court below, in sustaining the demurrer of the relator to the answer, filed an opinion covering the matters in controversy. This opinion is before us, and we have read the same with interest. The respondent takes the position that the refunds alluded to were legally made under a then valid statute, before any court had held the statute to be unconstitutional; that the payments were voluntary, and made without any mistake of fact and without any duress; and that the county had full consideration for the refunds in that the purpose for which the law was enacted, to wit, early payments, had been realized and the county had been benefited. It is pointed out by the respondent that the act, presumed to be constitutional, imposed a duty upon the officials to make the refunds and they were all made in pursuance of the act; that there was no mistake of law and the officers were not under a misapprehension as to the law; that they had the advice of the prosecuting attorney and the approval of the Bureau of Inspection which they followed ; that there was no mistake of fact; and that the purpose of the legislation was to meet the moral obligation to equalize the rights of taxpayers. It is asserted that the officers might have raised the question as to the validity of the act before the refunds were paid, but did not do so. Counsel urge that the statute was valid *340prior to a judicial determination to the contrary, citing, among other cases, *State*v. *Gardner,*54 Ohio St., 24, 42 N. E., 999, 31 L. R. A., 660; *City of Mt. Vernon*v. *State,*71 Ohio St., 428, 73 N. E., 515; and *State, ex rel. Cline,*v. *Vail,*84 Ohio St., 399, 95 N. E., 911. Counsel draw the conclusion that the county officials rightly felt themselves to be bound by the statute commanding them-to make refunds, that, when they made refunds before the validity of the law had been questioned, they were not to be charged with having made an illegal payment, and that, if they did make a mistake in treating the law as constitutional, the payments were made under a then valid section. Counsel quote 31 Ohio Jurisprudence, 212, Section 134, to the effect that the rule is that money voluntarily paid under a claim of right to the payment, and with knowledge of the facts; can not be recovered back on the ground that the claim was illegal, although the payer expressly reserves his-right to litigate his claim.

It is urged that the county auditor could have refused to pay the refund and could have defended on the ground that the act was unconstitutional, and not having done so he was, in his opinion, acting pursuant to the authority of a valid statute. It is asserted that parties may so conduct themselves with respect to the subject of unconstitutional legislation that they are estopped to deny its binding character. It is also asserted that the defense of “voluntary payment” is available against the county. Citing, *City of Marietta*v. *Slocomb, 6*Ohio St., 471.

Counsel cite other cases and authorities, among them. 15 Corpus Juris, 662, Section 374, and *Blumenthal*v. *United States,*4 F. (2d), 808, and maintain that under these authorities the court below erred in sustaining the demurrer to the answer setting up the defense of voluntary payment.

Counsel discuss at length the case of *Vindicator*
      *341
      *Printing Co.*v. *State,*68 Ohio St., 362, 67 N. E., 733; and *State, ex rel. Hunt,*v. *Fronizer, 8 C. C.*(N. S.), 216, 18 C. D., 709, which case was further considered by the Supreme Court in *State, ex rel. Hunt,*v. *Fronizer,*77 Ohio St., 7, 82 N. E., 518. Counsel also cite *Thomas*v. *State, ex rel. Gilbert,*76 Ohio St., 341, 81 N. E., 437, claiming that that case is in perfect analogy to the case at bar. Counsel point out the distinction that they claim can be made between the payment of taxes and of penalties.

Counsel for relator file a brief in which they- seek to answer the argument of respondent and to justify the judgment of the court below. • ■

The narrow question is whether the prosecuting- attorney may, by virtue of the authority conferred upon him by Section 2921, General Code, recover from the respondent the penalties which were refunded under the provisions of an act of the Legislature which, at.the-time of the refund, had not been declared unconstitutional, but was thereafter so held.

Section 2921, General Code, enacted for the protection of public funds, provides, -in substance, so far .as.it relates to the case at bar, that, upon being satisfied that public moneys have been illegally drawn from the treasury, the prosecuting attorney may apply by •civil-action to recover the public moneys so illegally drawn.

There seems to be no contention between the parties as to the unconstitutionality of that part of Section 1 of Senate Bill No. 359, which provides that in case a. penalty and interest has been paid on account of delinquent taxes such penalty shall be refunded on order of the county auditor directed.to. the county treasurer,provided the principal sum of the taxes and assessment; is paid prior to the 31st day of December 1936. . .

In the case of *State, ex rel. Crotty,*v. *Zangerle, Aud.,*133 Ohio St., 532, 14 N. E. (2d), 932, the court had under consideration, the constitutionality .of Section-. *3422590-1, General Code, providing that whenever any penalty is paid and is afterwards abrogated by the Legislature, and such penalty paid between June 1930 and January 1937 is remitted and abrogated, and upon application to the áuditor before the first of January 1940 such penalty shall be refunded on the order of the county auditor directed to the county treasurer. There are many matters of interest discussed by the court, among them being that penalties and interest, after collection, are to be considered and treated as taxes, the court stating on page 538:

“Clearly interest and penalties upon delinquent taxes must be considered as part of the taxes for the purpose of solving the question here presented. Hence the decision in the *Rosche case*[50 Ohio St., 103, 33 N. E,. 408, 40 Am. St. Rep., 653, 19 L. R. A., 584] requires this court to hold that the statute involved in the instant case is retroactive in its nature and therefore violative of Section 28 of Article II of the Constitution of Ohio.

“Likewise this court is of the opinion that this statute is patently repugnant to the equal protection clauses of Section 2 of Article I of the Constitution of Ohio and Section 1 of Article XIV of the Amendments to the Constitution of the United States.”

In the case of *State, ex rel. Outcalt, Pros. Atty.,*v. *Guckenberger,*134 Ohio St., 457, 17 N. E. (2d), 743, it is held that the provisions of the Whittemore Acts which authorize the remission of the penalties, interest and other charges on unpaid delinquent taxes, when payment of taxes is made within a prescribed time, are valid and not in contravention of the state and federal Constitutions.

The opinion by Williams, J., states on page 461:

“This court is of the opinion that no constitutional rights are contravened by the Whittemore Acts insofar as they undertake to remit penalties, interest and *343charges. In this respect those acts do not violate Section 26 of Article II of the Ohio Constitution, * * *; nor Section 2 of Article XII * # ***which requires taxation of real estate by uniform rule, for the reason that they concern not taxation or even the collection of taxes but the remission of penalties, interest and charges; nor the equal protection clauses of the state and federal Constitutions * * * for the reason they are not discriminatory but apply to all of one class, namely, delinquent taxpayers who have not paid their taxes, and the classification is not unreasonable nor arbitrary * * *. nor gection 28, Article II * * * which forbids the General Assembly to pass retroactive laws, for the reason that the acts are prospective in character — they do not interfere with vested rights acquired under existing laws, impose a new duty, attach a new disability, or create a new obligation with respect to transactions or considerations already past * * *. ”

Williams, J., on page 463, states that it is urged that the position taken by the court is inconsistent with *State, ex rel. Crotty,*v. *Zangerle, Aud., supra,*in which the court held unconstitutional the amended Ogrin Act which provided for the refund of penalties. Williams, J., points out that in that case it was held that penalties which had been paid in discharging tax obligations became a part of the taxes collected and were distributed to the subdivisions of the state, and that after payment into the public treasury, they could not be refunded through legislative enactment. The judge points out that there is a distinction, in that penalties, interest and charges, when commingled with taxes in a common fund as a result of collection, are taxes so far as the power of the General Assembly to pass legislation for their refund is concerned, but before collection are not.

In speaking of the Whittemore Acts on page 465, it is stated that:

“That part of the enactment provides for a refund *344of a penalty already paid and is therefore invalid and unconstitutional under the pronouncement in *State, ex rel. Crotty,*v. *Zangerle, Aud., supra,*but since the part quoted may be separated from the other provisions their validity is not affected thereby.

“In our judgment the Whittemore Acts (except insofar as they provide for refund of penalties) constitute a valid exercise of legislative power and are constitutional. ’ ’

A question that may engage our attention is whether an unconstitutional act has validity from the date of its passage until it is declared unconstitutional, or whether it is void *ab initio.*There seems to be some doubt upon the part of counsel upon this question. While we have not been cited to any case directly passing upon this point, we find it incidentally referred to in several cases.

In the case of *State, ex rel. Cline,*v. *Vail, supra,*the opinion is by Shauck, J. We may quote some of his observations:

Page 405: “No controversy exists respecting the proposition that an unconstitutional law is in legal contemplation inoperative as though it had not been passed.”

Page 406: “The adjudication that the act was unconstitutional only declared that that was its character. Its character had been fixed from the time it was enacted. ’ ’

In *Thomas*v. *State, ex rel. Gilbert, supra,*it is said on page 361, after speaking of the invalidity of an unconstitutional act:

“Upon principle this doctrine may be regarded as entirely consistent with the commonly accepted doctrine that an unconstitutional act of the Legislature is not a law but a nullity. It is in accordance with the general rule that all who assume the validity of legislation do so at their peril. As to them, contracts pur*345porting to be authorized by void legislation have no obligation to be impaired by judicial decisions which apply to them the tests prescribed by the Constitution. ’ ’

There is, however, a line of cases which are of interest in that they hold that under certain conditions one may not be heard to deny the constitutionality of a law affecting a contract. As touching this matter we cite *State, ex rel. Hunt,*v. *Fronizer, supra,*which holds that the statute which authorizes the prosecuting attorney to bring an action to recover back money does not authorize the recovery of money paid on the county commissioners’ bridge contract fully executed but rendered void from the inadvertent omission of a proper certificate, there being no claim of unfairness or extortion nor any claim of an effort to put the contractor *in statu quo*by the return of the bridge, etc.

Speer, J., on page 16, after holding that the money could not be recovered, states:

“This court is of the opinion that such recovery is not authorized. The principle applicable to the situation is the equitable one that where one has acquired possession of the property of another through an unauthorized and void contract, and has paid for the same, there can be no recovery back of the money paid without putting, or showing a readiness to put, the other party *in statu quo, * * *,”*

On page 17 it is stated:

“It does not appear that it was the intention to deprive a party who has dealt with the county honestly, and in good faith, of any legitimate defense or to impose upon the court any duty to ignore the well-established rules of jurisprudence and adjudge in favor of the plaintiff upon his application whether such demand violates fundamental principles of law or not. ’ ’

*City of Mt. Vernon*v. *State, supra,*is to the effect that where a municipal corporation has entered into a *346contract under a statute which, is unconstitutional and the facts against the corporation are such as would estop an individual from setting up a defense of the unconstitutionality of the statute, the municipal corporation will also be so estopped.

In *State, ex rel. Cline,*v. *Vail, supra,*it is held that a party may assert that an unconstitutional act is a nullity, unless his conduct with reference to the subject of the act has been such that to permit the assertion would place his adversary in a less favorable position than he would have occupied had the act not been passed.

In *Thomas*v. *State, ex rel. Gilbert, supra,*it is held that the Supreme Court having affirmed the constitutional validity of the legislative act passed to authorize contracts, and such contract having been entered into and services performed towards its execution, the party performing them, notwithstanding the Supreme Court’s subsequent decision that the act is constitutionally void, is entitled to receive the stipulated compensation for such services as he has performed before the filing of the petition in the action which challenged the validity of such contract.

On page 362 it is said in substance by Shauck, C. J., that contracts executed under favor of acts which the highest court has declared valid are themselves valid as against subsequent decisions to the contrary, though the acts may not be valid.

A party may assert the nullity of the law unless his conduct in reference to the subject of the act would place the other party in a less favorable position than he would have occupied if the act had not been passed.

It is further claimed that the relator is estopped from asserting the unconstitutionality of the act because he received into the. county treasury the taxes which it was the purpose of the unconstitutional portion of the act to promote, and that therefore the *347county treasury had received a benefit which prevents the recovery on account of its unconstitutionality. But what detriment has inured to the respondent by virtue of the payment of the taxes and the penalty out of a fund received by sheriff in a foreclosure proceeding? Under the statute, the respondent, being a lienholder, could have come forward and paid the back taxes and saved the penalty, but it did not see fit to do so. It waited until it chose to foreclose its lien and then paid the penalty by virtue of the order of the court and the act of the sheriff. It has no moral claim against the county by virtue of any act done by it.

In *State, ex rel. Cline,*v. *Vail, supra,*it is said at the bottom of page 406:

“Nor can it be governed by the doctrine of estoppel which requires that the party by whom it is asserted shall have sustained some detriment by reason of the conduct or representation of him against whom the estoppel is invoked. ’ ’

Until the respondent can plead and show that it suffered some detriment, not by reason of the payment by the sheriff to the county treasurer of the penalty, but by the repayment by the county treasurer of the penalty to the respondent, there can be no claim made that the respondent sustained some detriment by reason of the payment by the sheriff, as that has nothing to do with the claimed right to recover now asserted by the prosecuting attorney. The judgment against the respondent is to recover back money wrongfully paid by the treasurer. Certainly it can not be asserted that the respondent sustained any detriment by reason of the fact that the county treasurer paid to it money to which it was not entitled.

The respondent relies upon its second defense which is to the effect that the money was paid voluntarily without duress and in full possession of all the facts but simply through a mistake of law. The court below *348held that the county treasurer could not he held to make a voluntary illegal payment which would prevent the recovery of the money. The statute itself under which the prosecuting attorney is proceeding is based upon his conviction that public moneys have been illegally drawn from the county treasury. If he is so satisfied he has a right to bring the action, there is no exception depriving him of this right, if the money were voluntarily paid under a mistake of law.

Let us visualize the matter as it actually occurred. The respondent had a mortgage lien upon certain real estate upon which there were delinquent taxes which gave rise to the imposition of certain penalties. The respondent then proceeded to foreclose and out of the purchase money the sheriff paid into the county treasury the taxes and penalties. The penalties were commingled with the taxes and distributed to those subdivisions entitled thereto. When money reaches the treasury there is but one key that will unlock the door of the safe and permit its legal distribution. Section 2674, General Code, provides that no money shall be paid from the county treasury except on the warrant of the county auditor, with certain exceptions. Therefore, before the treasurer can legally pay out the money it must be upon the voucher or a warrant of the auditor.

Section 2570, General Code, provides that the county auditor shall issue warrants on the treasurer for all moneys paid from such treasury, upon presentation of the proper order or voucher therefor. He shall not issue a warrant for the payment of any claim against the county unless allowed by the county commissioners, except where the amount due is fixed by law or is allowed by an officer or tribunal authorized by law to do so.

The statute now in question provides: “Such penalty *349shall be refunded on order of the county auditor directed to the county treasurer. ’ ’

But this provision of the section is unconstitutional and void and had no validity from the beginning; therefore the county auditor could not issue Ms warrant to the county treasurer to pay the money to the respondent. There would then be no way to get the money out of the treasury in view of the unconstitutionality in the provision, except on the allowance by the county commissioners as provided by Section 2570, Q-eneral Code. The county commissioners, of course, took no part in the refund, and the auditor could not issue the warrant because his authority was invalid. It must follow that the money did not *legally*leave the treasury, and this aside from the fact that the statute permits the prosecuting attorney to bring an action under certain circumstances.

We therefore reach the conclusion that the court below committed no error when it overruled the demurrer to the respondent’s answer and rendered judgment in favor of the county.

The judgment is affirmed and the cause remanded.

*Judgment affirmed.*

Hornbbck, P. J., and Barnes, J., concur.