Statement of the Case. Plaintiff asks for an injunction restraining the county treasurer and auditor from distributing these taxes among the different funds without reserving twenty-five per cent. thereof to pay the compensation of this plaintiff, and that upon final hearing the county treasurer be ordered to certify to the county commissioners that the taxes have been paid into said treasury in compliance with the contract of said plaintiff; that the county commissioners be ordered to allow the claim of plaintiff, and for such other and further relief to which plaintiff may be entitled either in law or equity. To this petition the defendants filed the following demurrer: First, that the pretended legislation, upon which the plaintiff's action is based, is in violation of Section 26 of Article II of the Constitution of the state of Ohio, and is unconstitutional and void. Second, the petition does not state facts sufficient to constitute a cause of action against these defendants. This demurrer was overruled by the superior court of Cincinnati, and the defendants, not desiring to plead further, judgment was entered against them, as prayed in the petition. The defendants then prosecuted error in the circuit court of Hamilton county, and that court affirmed the judgment of the superior court. This proceeding in error is now prosecuted in this court to reverse the judgments of both the circuit and superior courts. Mr. Thomas L. Pogue, prosecuting attorney, and Mr. John V. Campbell and Mr. Charles A. Groom, assistant prosecuting attorneys, for plaintiffs in error. Opinion of the Court. Mr. Rufus B. Smith; Mr. John J. Weitzel and Mr. A. W. Bruck, for defendant in error. DONAHUE, J. It is admitted that the statute authorizing the county commissioners, auditor and treasurer to enter into this contract with plaintiff is unconstitutional, but it is insisted, on the part of defendant in error, that legislation of this character had heretofore been held constitutional by this court, that he relied upon such holding in making his contract and performing the services thereunder, and that, therefore, his claim comes within the doctrine announced in the case of Thomas v. State, ex rel., 76 Ohio St., 341. Our attention is called to the case of State, ex rel., v. Crites, Auditor, 48 Ohio St., 142, wherein the court held similar legislation constitutional. That case was decided February 24, 1891, and, as plaintiff's contract was made long before that time, it can avail him but little in support of his contention. The case of State, ex rel., v. Cappeller, 39 Ohio St., 207, is also cited by counsel for defendant in error, and it does appear that in that case this court held Section 1 of the act of April 14, 1880 (77 O. L., 205), constitutional, but it does not appear that that act had anything to do with the question in that case. In the August settlement, 1881, the county auditor sought to withhold from the state its share of costs and counsel fees in suits against the auditor and treasurer in relation to their duty in respect to the collection of taxes, and also certain amounts paid by the county to local collectors for collecting delinquent personal Opinion of the Court. taxes for the years 1869 to 1876, inclusive. Section 1 of the act of April 14, 1880 (77 O. L., 205), applied only to persons employed to ascertain and furnish to the county auditor facts and evidence necessary to authorize him to subject to taxation property improperly omitted therefrom prior to the passage of that act, and did not relate to the employment of persons to assist in the collection of delinquent taxes already charged on the tax duplicate. The determination of the foregoing question, however, is wholly unimportant to the disposition of the case at bar. Conceding that the defendant in error, when he made and entered into this contract with the officials of Hamilton county, had the right to rely upon the judgment of this court in the case of State, ex rel., v. Cappeller, supra, and that, having done so, he should now be protected under the doctrine announced in the case of Thomas v. State, ex rel., 76 Ohio St., 341, it does not necessarily follow that this defendant in error is entitled to be paid the compensation provided for in his contract out of taxes other than the taxes due and unpaid at the time the services were performed. An analysis of this contract shows that plaintiff was employed and appointed by the commissioners, auditor and treasurer of Hamilton county "to diligently search for and discover in a lawful manner, omitted, concealed and unassessed taxable real estate that has been omitted from the assessment rolls and tax duplicate of Hamilton county, Ohio, and upon which said property the taxes are lawfully due and unpaid." Out of Opinion of the Court. these taxes, when collected, he was to be paid twenty-five per cent. of the total amount actually recovered by the treasurer of Hamilton county, Ohio, from the assessment of such omitted real estate, and it was specially provided in the contract that "nor any part thereof shall be deemed due and owing until the taxes on such omitted real estate aforesaid have actually been paid into the county treasury." This contract related to and comprehended only the conditions then existing in Hamilton county, and not with conditions that might exist in 1905. By the clear terms of the contract, the taxes out of which he was to be paid for his services were the taxes that were then lawfully due and unpaid, and not out of taxes that might become lawfully due and unpaid twenty years thereafter. He was not entitled to project this contract to include taxes that might accrue beyond the time limited for its termination. The contract was to continue for two years from the 2nd day of May, 1887, and if, by reason of his services, any of the taxes then lawfully due and unpaid upon omitted real estate, or any taxes that might become lawfully due and unpaid upon omitted real estate during the term of his contract, should be paid into the county treasury, either before or after the expiration of his contract, he would be entitled out of those taxes, and no other, to be paid the compensation provided in the con tract. It is true that his petition does not state for what years the auditor, in 1905, placed this omitted real estate upon the tax duplicate, but, under the law, it could not have been any of the years pre Opinion of the Court. ceding the date of the termination of this contract. According to the averments of his petition, he furnished this information to the auditor on the 15th day of February, 1888, and out of whatever taxes were then lawfully due and unpaid on omitted real property prior to that date and were actually procured to be paid into the county treasury, he would be entitled by the terms of his contract to be compensated, but not out of the taxes paid upon that same property for a later period. Through a mistake of the taxing officer, this omitted real estate, discovered by defendant in error, was placed upon the tax duplicate in the names of persons who were not liable for the payment of the same, and by reason of this error, these taxes, which he had been instrumental in having placed upon the tax duplicate, never were collected and never can be collected, and though the failure to collect the same was, probably, through no fault of his, yet under the terms of his contract, he was to be paid only out of these taxes, and cannot, therefore, be paid out of any other. The services that he was to render the county, under this contract, so far as this property is concerned, ended with the disclosures he made to the auditor on the 5th day of February, 1888. He does aver in his petition that he furnished evidence in the trial of the several cases, that he employed counsel to assist in the litigation, and that, from time to time, he urged upon the various auditors to place this property upon the tax duplicate for years subsequent to 1888. These services were not contemplated in this contract. They |