Epitomized Opinion
The original action was begun in the Summit Common Pleas in which the trustees of Portage townships sought to enjoin the collection, by the commissioners, of taxes from taxpayers in the township, for the purpose of helping to defray expenses of improving the Akron-Cleveland road which was alleged to pass through Portage township. It was alleged in the trustee’s amended petition that an agreement had been entered into by the township’s trustees and the county commissioners whereby the township agreed to pay 15 percent of the actual cost of the improvement within Portage township, and agreed to levy a tax on all taxable property, aside from authorized taxes; and such tax was not to exceed 2 mills in any one year.
The percentage of the township’s share amounted to $7,000, and judgment in the Common Pleas was directed against the trustees. In prosecuting error to the Appeals the judgment of the Common Pleas was affirmed, it being held.
That the suit by trustees did not state a cause of action when such trustees were not designated as taxpayers in the said township. In other words, failure of trustees to allege they were taxpayers suing in behalf of other taxpayers of Portage township did not set up a cause. In bringing the cause to the Supreme Court for consideration, the trustees contend:
1. Said Akron-Cleveland road did not pass through any part of Portage township, because the territory through which it passes had previously been part of said township; but since the building of said road had been annexed by the cities of Akron and Cuyahoga Falls so that no legal tax could be levied upon taxpayers of said township.
2. The Court of Appeals erred in holding that the trustees by alleging their official positions and trust did not allege facts which make them interested in the tax rate. The township being a corporation, by inference, the governing board had proper authority to bring an action for it.
3. Authority not conferred on township trustees to make a contract fixing amount to be spent by township for improvements. 1193-1 GC.