Treasurer of Athens County v. Dale ( 1899 )

By the Court.

The court is of the opinion that the Treasurer, on the facts stated in his application, had a right to a rule on the Receiver for the payment of the taxes and penalty as prayed for; and that the answer does not show a sufficient reason for denying it.

The averments of the answer at most only show that it is not convenient for the Receiver to pay the taxes, and run and operate the road — it would require greater economy in expenditures, not that it would be absolutely impossible to operate the road, and do so. The right of the state to the receipt of its taxes is paramount to that of all others; without the protection of the state and its laws, the road could not be run and operated, and the property would be of little, if any value; so that it is apparently of as much importance to the road, that the taxes due the state, on which all rights of property depend, should be paid without delay, as that wages, salaries and other expenses of running and operating it, should be paid. It is the duty of the receiver of the property of a railroad to pay all taxes levied upon it, as much as to purchase and pay for ties or anything else needed in its operation. He has the right to take credit for their payment in his account, and no creditor can complain. The state is not included in section 3417, Revised Statutes, and for this reason, and the fact of the superiority of its claim, is not affected thereby.

The averment that there would be a decree for the sale of the road in a few weeks in the common pleas of Washington county, and the taxes ordered paid, is immaterial. There is no certainty in the fact averred. The receiver has no control of the making of a decree. It may or may not be sold as averred. And the fact, admitted at the argument, that no sale has been made, and that the matter is still in litigation, illustrates the immateriality of the averment. The right of the state to receive the taxes due it cannot he indefinitely postponed in this way!

Judgment reversed and rule entered for the Treasurer.