Opinion
No. 33338
Decided June 17, 1953.
Taxation — Mandamus to compel listing of real and personal property of municipality — Writ denied taxpayer — Adequate remedy at law available — Sections 5616 and 5609, General Code.
APPEAL from the Court of Appeals for Franklin county.
This action in mandamus was instituted in the Court of Appeals for Franklin county in 1947 by Carlton H. Hepperla, "a citizen and taxpayer of the state of Ohio," against the then Tax Commissioner. Later, the city of Cleveland, the then members of the Board of Tax Appeals and the auditor of Cuyahoga county were brought into the action as respondents.
The prayer of the second amended petition reads as follows:
"Wherefore, relator prays that a writ of mandamus be issued commanding the respondents C. Emory Glander, as Tax Commissioner of the state of Ohio, and/or Clyde C. Sherrick, Frank F. Fleming and Robert M. Hance, as members of the Board of Tax Appeals of the state of Ohio, and/ or John A. Zangerle, as auditor of Cuyahoga county, to assess and levy taxes on all real property set forth and described in the above first cause of action; and that the respondent the city of Cleveland, through its officers and officials, be required to list and return, for purposes of taxation, according to law, all the personal property owned and/or operated by the said city of Cleveland and used in business in the operation of the functions set forth in the above second cause of action."
The real property mentioned in the first cause of action and allegedly owned by the city of Cleveland consists of the Highland Park Golf Course, the Seneca Golf Course, the Cleveland Municipal Stadium, the Cleveland Municipal Airport, the Public Auditorium, the Municipal Waterworks, the Municipal Light Plant and the Public Markets.
Set forth in the second cause of action is the personal property in the form of machinery, equipment, transmission facilities and other personal property employed in the operation of the proprietary enterprises described in the first cause of action.
Answers were filed by the city of Cleveland, the members of the Board of Tax Appeals and the Tax Commissioner. A reply was then filed to the answer of the city of Cleveland.
Later, a stipulation of facts was entered into by counsel for relator and counsel for the city of Cleveland and still later a stipulation of facts was entered into by counsel for relator and counsel for the members of the Board of Tax Appeals.
Under date of November 20, 1952, the following judgment entry was filed in the Court of Appeals:
"This cause came on to be heard this 29th day of September, 1952, upon this second amended petition, the several answers of the respondents other than the auditor of Cuyahoga county (whose motion to quash summons served upon him was previously sustained), the reply of relator, a stipulation of facts and briefs and oral arguments of the parties, upon consideration whereof, the court being fully advised, finds as follows:
"1. That the property described in the record as the Cleveland Municipal Stadium, having been previously held to be taxable by the Supreme Court, is not involved in the issues herein presented and determined.
"2. That as to the issues joined under relator's first cause of action between the relator and each of the remaining respondents and so far as it concerns the taxation of the real estate in question, relator has an adequate remedy in the ordinary course of the law whereby a writ of mandamus may not be allowed as to such realty.
"3. That as to the issues joined between the relator and respondents Glander and the Board of Tax Appeals under the first and second causes of action as they pertain to the personal property in question, relator also has an adequate remedy in the ordinary course of the law whereby a writ of mandamus may not be allowed as to such personal property.
"4. That as to the issues joined between the relator and respondents city of Cleveland and Glander, Tax Commissioner, under the second cause of action and pertaining to personal property used in the operation of respondent's airport, golf links, light plant, public auditorium, public markets and waterworks, said personal property is owned and used exclusively for and in furtherance of public purposes and the profit motive being absent, is exempt from taxation and therefore a writ of mandamus may not issue as prayed for.
"Wherefore, it is ordered, adjudged and decreed that the petition of the relator, Carlton H. Hepperla, be dismissed and the respondents may go hence without day with cost to the relator."
The cause is now in this court for disposition on an appeal as of right.
Messrs. Davis Young, Mr. Meyer A. Cook, Mr. Isadore Topper and Mr. Leonard Stern, for appellant.
Mr. C. William O'Neill, attorney general, Mr. Everett H. Krueger, Jr., Mr. J. Ralston Werum, Mr. Joseph H. Crowley, director of law, and Mr. Richard O. Horn, for appellees.
Mandamus is an extraordinary remedy, and to maintain successfully an action in mandamus it is incumbent on the relator to show that he has no adequate remedy at law and that the person or persons against whom the issuance of the writ is asked have failed to perform a duty specially enjoined on them by law.
This court is of the opinion that the principle announced and applied in the case of State, ex rel. Hile, a Taxpayer, v. Zangerle, Aud., 132 Ohio St. 523, 9 N.E.2d 292, is largely determinative of the instant controversy. An examination of the record in that case discloses that both real and personal property were involved. With respect to the instant case, the material difference between the statutory law in force when the Hile case was decided and the statutory law which is applicable to the present case is that certain duties with respect to taxation, which formerly devolved upon the Tax Commission, are now divided between the Tax Commissioner and the Board of Tax Appeals.
As pointed out in the opinion of the Court of Appeals herein, a county auditor presently acts under the direction of the Board of Tax Appeals with respect to real property, whereas with respect to personal property he acts under the direction of the Tax Commissioner.
Section 5616, General Code, reads as follows:
"Any person, board or officer authorized by this act to file complaints with the county board of revision may complain to the Tax Commission of Ohio at any time prior to the thirty-first day of December in any year, of the determination of a county auditor respecting the liability of any property to taxation in that year, or its exemption therefrom. The commission shall hear such complaint and determine whether the property complained of is subject to taxation and certify its findings to the county auditor, who shall correct the tax list and duplicate accordingly."
Under this section, relator had the right to complain to the Board of Tax Appeals with respect to the failure of the Cuyahoga county auditor to place the real estate of the city of Cleveland, described in the second amended petition, on the tax list and duplicate, but he did not exercise that right.
Section 5609, General Code, recognizes the right of any taxpayer to file a complaint with the county auditor respecting the valuation or assessment of property on the tax duplicate. The county auditor is then required to lay the complaint before the county board of revision for action. Reading such section in conjunction with Section 5616, General Code, we believe the relator, as a taxpayer, occupies a status which enables him to invoke the latter section and make a direct complaint to the Tax Commissioner concerning the failure of the county auditor as the deputy or agent of the Tax Commissioner (Section 5372-3, General Code) to list and assess the personal property described in the second amended petition. In such event, the final determination of the Tax Commissioner thereon would have been subject to review by the Board of Tax Appeals under Section 5611, General Code, and from the decision of the board an appeal might have been taken to this court under Section 5611-2, General Code. The relator did not avail himself of this statutory procedure.
However, the relator insists he could not proceed under Section 5616, General Code, because there was no "determination" by the county auditor, within the meaning of that section, with respect to the taxability of the described property. It seems to us that the fact that the county auditor did not place such property on his records as taxable assets of the municipality for the years in issue constitutes a "determination" on his part that such property enjoyed an exempt status and was, therefore, not subject to taxation.
Since the relator herein did not pursue the remedies afforded him by law, he could not successfully resort to an action in mandamus to accomplish the end sought, and the Court of Appeals properly dismissed his petition. On such ground, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MIDDLETON, MATTHIAS, HART and ZIMMERMAN, JJ., concur.
I concur in the judgment as to the first cause of action, for the reasons given in the majority opinion, and as to the second cause of action, for the reason that, in my opinion, the personal property involved in the cause is "owned and used exclusively for and in furtherance of public purposes" with no profit motive and is, therefore, exempt from taxation.