Summary
dismissing petition in mandamus since § 5715.19 provided adequate remedy to address allegedly illegal valuation of property where auditor failed to publish a notice required under § 5715.17 that tax returns have been revised and valuations completed and complaints would be heard at a stated time and place
Summary of this case from In re MeggittOpinion
No. 70-369
Decided February 24, 1971.
Taxation — Assessing real estate — Complaining taxpayer — Adequate remedy in ordinary course of law — R.C. 2723.01 — R.C. 5715.19 — Mandamus not available.
1. R.C. 5715.19 provides a taxpayer a plain and adequate remedy in the ordinary course of law for the correction of any overvaluation, undervaluation, discriminatory valuation, or illegal valuation which appears upon the tax duplicate of a county for the current year.
2. A taxpayer who contends that the assessment of real property upon the tax duplicate for the current year is illegal because the statutory requirements for revision (R.C. 5715.16) and publication (R.C. 5715.17) have not been complied with has a plain and adequate remedy in the ordinary course of law by way of injunction pursuant to R.C. 2723.01.
3. Mandamus is not a proper remedy where a taxpayer has a a plain and adequate remedy pursuant to R.C. 5715.19 or R.C. 2723.01.
APPEAL from the Court of Appeals for Hancock County.
Relators, appellants herein, instituted this action in mandamus in the Court of Appeals for Hancock County. They are electors and taxpayers of Hancock County. The respondents, appellees herein, constitute the Hancock County Board of Revision. Appellee Stout, chairman of the Board of Revision, is also county treasurer; appellee Wisner, secretary of the Board of Revision, is also county auditor; and the third member, appellee Huffman, is also chairman of the Board of County Commissioners.
Relators sought a writ of mandamus ordering the respondents to perform the "duty of the complete revision of the representative classes of property" in Hancock County, and a temporary injunction enjoining the collection of taxes for the year 1969 (to be collected in 1970). During the year 1969, the Board of Revision heard approximately 2,600 complaints concerning valuation for property tax purposes for the year 1968 and made determinations thereof.
When the time came for the auditor to submit the abstract of real property for Hancock County for the year 1969 to the Board of Revision, no formal presentation was made by the auditor. However, minutes showing the approval of the abstract, as required by R.C. 5715.16, were prepared and signed by two members of the Board of Revision. The auditor certified that the abstract was a true and correct return of the assessments of real property, as revised by the Board of Revision, and submitted the abstract to the Board of Tax Appeals which approved the same. The auditor also prepared the required notice pursuant to R.C. 5715.17, but by error failed to publish the notice as required.
At the time of hearing before the Court of Appeals, approximately 90 per cent of the taxes for the first half of the year had been collected. The Court of Appeals denied the writ and dismissed the petition for the reason that the relators had an adequate remedy at law. ( 23 Ohio App.2d 1.) The cause is before this court upon appeal as a matter of right, being an action originating in the Court of Appeals.
Mr. David A. Hackenberg. Mr. Carl W. Hinton and Mr. John C. Sausser, for appellants.
Mr. Richard J. Rinebolt, prosecuting attorney, for appellees.
Even though the appellants have shown that the appellees did not comply in full with the applicable statutes with regard to the assessment of taxes for the year 1969 (R.C. 5715.16 and 5715.17), the initial question before this court is whether or not the appellants chose the correct remedy.
It is fundamental that a writ of mandamus will not be granted where the persons seeking the writ have an adequate remedy in the ordinary course of law including both legal and equitable remedies. See State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, the tenth paragraph of the syllabus of which is as follows:
"The Court of Appeals is governed by the same rules that govern the Supreme Court with regard to its original jurisdiction in mandamus actions. On appeal as a matter of right from a judgment from a Court of Appeals in such an action, the Supreme Court will review the judgment of the Court of Appeals, as if the action had been filed originally in this court, to determine the following questions: (a) Is the respondent under a clear legal duty to perform an official act? (b) Is there a plain and adequate remedy in the ordinary course of the law? (c) Is the action, although labeled a proceeding in mandamus, in effect an action seeking an injunction? (d) Whether, on the question of the allowance or denial of the writ on the merits, the Court of Appeals abused its discretion."
R.C. 5715.19 provides a procedure for the filing of complaints against any valuation or assessment which appears upon the tax duplicate. Such complaint may be filed by any taxpayer with respect to his own or another's real property. Approximately 2,600 such complaints were filed with respect to the 1968 tax duplicate and were heard and determined by the Hancock County Board of Revision. There is no indication that any such complaints were filed with regard to the 1969 tax duplicate or that the Board of Revision refused to hear any such complaints, or failed to include in the 1969 tax duplicate adjustments made as a result of the complaints filed with regard to the 1968 tax duplicate.
R.C. 5715.19 afforded appellants an adequate remedy in the ordinary course of law whereby any errors or inequities in the valuations or assessments appearing upon the 1969 tax duplicate of Hancock County could be brought to the attention of the Board of Revision, and be heard and corrected by that board. Appellants apparently have not availed themselves of that remedy.
In this case, appellants make no contention that any overvaluation, undervaluation, discriminatory valuation, or illegal valuation exists with regard to their own properties. Furthermore, R.C. 5715.19 provides that any overvaluation, undervaluation, discriminatory valuation, or illegal valuation found to exist by the Board of Revision shall relate back to the date when the lien for taxes for the current year attached and that liability for taxes for the current year shall be based upon the valuation or assessment as finally determined by the Board of Revision following the hearing upon such complaints. R.C. 5717.01 provides for an appeal to the Board of Tax Appeals from the decision of the Board of Revision.
With regard to the failure of the county auditor to comply with statutory requirements with respect to the 1969 tax duplicate, the appellants sought in this case a restraining order enjoining the collection of the taxes. It is clear that merely seeking a writ of mandamus would not prevent the collection of taxes for the year 1969 despite the failure of the auditor to comply with statutory procedures. Apparently, it was necessary to seek a restraining order or injunction enjoining such collection to avoid having the issues mooted by collection of the taxes.
Where, as here, an action in mandamus does not provide effective relief unless accompanied by an ancillary injunction, it would appear that injunction rather than mandamus is the appropriate remedy. R.C. 2723.01 provides for an action to enjoin the illegal levy or collection of taxes to be filed in the Court of Common Pleas. Such section afforded appellants an adequate remedy with respect to their contention that the 1969 taxes were illegal because of the failure of the auditor to comply with statutory requirements.
It appears, therefore, that, inasmuch as the appellants had an adequate remedy in the ordinary course of law, the Court of Appeals did not err in so holding and dismissing the petition in mandamus.
For those reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, STEPHENSON and LEACH, JJ., concur.
STEPHENSON, J., of the Fourth Appellate District, sitting for CORRIGAN, J.
WHITESIDE, J., of the Tenth Appellate District, sitting for STERN, J.