Dissenting Opinion.
Hosea, J.The question here is whether the contract made by the county officers with Morgenthaler as “tax inquisitor,” under Revised Statutes, Sections 1343-1 to 1343-4, on September 17, 1902, is valid as ia contract relating to tax omissions occurring in returns subsequent to its date; in other words, whether said law authorizes contracts having a prospective operation.
Various other questions arising upon this or a similar contract with Morgenthaler were disposed of by this court in McGoldrick v. Lewis, 12 O. D., 46, but upon a suggestion arguendo the court declined to pass upon the question because not raised by the pleadings.
From the majority opinion in the present case, holding that such contracts may have a prospective operation, I am constrained, notwithstanding my high respect for the views of my associates on the bench, to- dissent, first, because the language of the statute seems to me to* preclude such view; and, second, because, if the language were susceptible of the construction indicated, the general policy of the law is against it.
The language of the statute is 'as follows:
‘ ‘ (1343 — 1). [Authorizing employment of tax inquisitors; their compensation.] The county commissioners, county auditor, and county treasurer, or a majority of said officers in -any county, when they have reason to believe that there has not been a full return df property within the comity for taxation, shall have power to employ .any person to make inquiry and furnish the county auditor the facts ¡as to .any omissions of property for taxation and the evidence necessary to' authorize him to subject *459to taxation any property improperly omitted from the tax duplicate, etc.”
(1) As the power to make such contract is wholly derived from statute, the conditions and limitations of the power specified in the statute must be given effect. The subject matter with reference to which the power'is given in this instance is defined in the opening sentence of the act stating a contingency which is the condition precedent to the exercise of the power, namely, “When they have reason to believe that there has not been a full return .of property within the county for taxation, they shall have power to’employ any person to. make inquiry,” etc.
This language has obvious reference to an existing condition growing out of a past fact, namely a condition arising upon one of the annual returns required by law, previously made.
The common canons of construction require us to refer all relative words and expressions, that follow later in the sentence, back to this dominant subject matter, namely, to the certain specific return, made under the law, which the designated officers have reason to believe is not full and complete. So that the subsequent words, “any omissions” and “any property imp'roperly omitted,” refer to omissions existing in the return already made; and there seems to -me no warrant in the language of the act for any other interpretation.
(2) In tracing the history of the statute, I find nothing to suggest any intention of the Legislature to extend the power of contracting to possible future omissions. The original statute of 1880 (77 O. L., 205) confined its operation to omissions occurring prior to the passage of the act. In the special act >of 1885, relating to Hamilton county (82 O. L., 152), the language is, “any property improperly omitted,” which is a common mode of expressing .an existing condition’, and does not refer to a future possibility. In the present act, passed in 1888 (85 O. L., 170), the limitation is still more specific by stating a condition precedent, namely, ‘ ‘ when they have reason to believe that there has not been a full return,” etc., which necessarily relates to a past event constituting an existing condition with sole reference to which the power is granted.
*460(3) Neither do I find in the opinions of the courts upon analogous statutes any support for the enlargement of the present statute by construction.
A question very similar to the present one arose before me in the case of The State, ex rel, v. Gibson, under the statute authorizing employment of a private individual to assist the treasurer in the collection of delinquent .and forfeited taxes. This court held that the contract must be confined strictly to past forfeitures which was affirmed by the higher courts. State v. Gibson, Court Index, July 23, 1903; affirmed in General Term, 1 N. P. — N. S., 565; affirmed by Supreme Court, 70 O. St., 424.
A clearly analogous case is that of Commissioners v. Arnold, 65 O. St., 479, based upon the statute authorizing employment of assistants in the collection of delinquent chattel taxes. The Supreme Court lay stress upon observance of statutory conditions, and incidentally lay down a principle having a pertinent application to the present case. In the opinion it is said: •
“Statutes enacted for the protection of the public revenues are, usually, not merely directory, but mandatory. * * * Each delinquent list must be read, and an employment made to collect the same; but there can be no employment of collectors to collect future lists. The employment of such collectors can not be turned into an office to be held to the end of the treasurer’s term, or for any definite period. His employment is to collect the delinquent list which has been read, or some part thereof, and when that is done his employment ends.'’
"While the opinion is, perhaps, confined to a discussion of the particular law, yet it is impossible to read its clear and forcible language without feeling that beyond its particular application, the court is stating in effect a rule of public policy inconsistent with any enlargement of such powers by construction to include future contingencies, and the clear .intimation is that such construction would create an office auxiliary to' that of the elective office, for 'the performance of duties with which the office is charged by general laws.
(4) The foregoing conditions suggest a broader view involving questions of a general public policy.
■There can be no question as to the general purpose of our system under which ail duties of a public character are 'assigned *461to only elected public officers. In the matter of taxation, the citizen is required, under suitable penalties, to return his property for taxation, to assessors who have power to correct returns and supply omissions, as to which the auditor has full power of investigation. The auditor is also given a special compensation to bring omitted property upon the duplicate.
I do not concede that the duties of the auditor are perfunctory or merely clerical. In Probasco v. Raine, Auditor, 50 O. St., 378, the Supreme Court has spoken upon this subject as follows (391) :
“To have equality in taxation all property must be brought upon the duplicate. Some officer must be authorized and empowered to cause 'all property to' be listed for taxation. Such officer must be paid for his services either by fees or salary. The Legislature has full power under the Constitution to say what officer shall perform such duties and in what manner he shall be paid. It has enacted that such duties shall be performed by the auditor, and that he shall be paid as provided in Section 1071,” etc.
Contracts of the nature, here in question find their justification in the increased complexity and amount of modem business interests and investments and the facilities thereby afforded for escaping taxation; and, sio far as they are confined to residual matters which the ordinary public officers have failed to reach and accomplish, after diligent efforts made in good faith to discharge their official duties in the premises, the employment of private assistance is proper and reasonable. Such seems to have been the view of courts’ in passing upon analogous contracts; but they have confined them strictly to such residual matters. To go further and enlarge the power to include future contingencies, opens up a door to obvious evils that a correct public policy must avoid. It is a step backward in the direction of farming out the collection of the public revenues to private interests, that history warns us 'against; and I find' no authority in this ease for supposing that it was the intention of the Legislature to take this step.
For the reasons given, I think the demurrers should be overruled.