Opinion
No. 26578
Decided October 27, 1937.
Taxation — Exemptions — Only Tax Commission may exempt property — County auditor may place exempted property upon taxable list — Section 5570-1, General Code — Aggrieved taxpayer may appeal to Tax Commission — Section 5616, General Code — Writ of prohibition against auditor denied, when.
1. Under the provisions of Section 5570-1, General Code, the Tax Commission has exclusive authority to declare property exempt, but the county auditor has authority in any year thereafter to strike property items from the exempt list and place them on the taxable list.
2. The county auditor, in striking property items from the exempt list, is performing a ministerial function and the aggrieved party may appeal to the Tax Commission under the provisions of Section 5616, General Code. Therefore, writ of prohibition will not issue to prohibit the county auditor from transferring items from the exempt to the taxable list, since there are other adequate remedies available.
APPEAL from the Court of Appeals of Hamilton county.
This was an original action in prohibition instituted in the Court of Appeals of Hamilton county by the appellant as relator. A demurrer to the petition was sustained and, the relator not desiring to plead further, the petition was dismissed.
The relator, Methodist Book Concern, a corporation, alleged in its petition that on June 19, 1934, certain property which it owned in Cincinnati, Hamilton county, Ohio, was declared exempt by the Tax Commission of Ohio. The significant portion of the order reads in part:
"The commission, therefore, consents to the exemption prayed for and that the property above described be entered upon the list of property in said county which is exempt from taxation for tax year 1934 and thereafter as long as said property is used for the purpose stated in the application on which this exemption is granted."
No appeal was taken from that order, and accordingly in 1934 the Auditor of Hamilton county placed the property of the relator on the exempt list.
In the petition, which was filed October 24, 1936, the relator alleged that the respondent, as Auditor of Hamilton county, declared his intention to and would, unless restrained and prohibited therefrom, place the property on the taxable list. The prayer of the petition asked that the auditor be restrained and prohibited from assuming jurisdiction, from hearing and determining the liability to or exemption from taxation of the property, and from entering any finding in respect thereto upon the records in his office.
The cause is before this court upon appeal from the order sustaining the demurrer and dismissing the petition of the relator.
Mr. Harry J. Koehler, Jr., and Mr. M.C. Slutes, for appellant.
Mr. Dudley Miller Outcalt, prosecuting attorney, Mr. Walter M. Locke and Mr. Greg. H. Williams, for appellee.
The determination of this cause depends upon the construction of two sections of the General Code, which are as follows:
Section 5616: "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." (Italics ours.)
Section 5570-1: "It shall be the duty of the county auditor to make a list of all the property, both real and personal, in his county, and including moneys, credits and investments in bonds, stocks, or otherwise, which is exempted from taxation under Sections 3410-6, 4759, 5349, 5350, 5351, 5352, 5353, 5353-1, 5356, 5357, 5359, 5361, 5362, 5363, 7915-1, 10093, 10101, 10105 and 10192 of the General Code. In each case in addition to the name of the owner, such list shall show the value of the property exempted and a statement in brief form of the reason for or ground on which such exemption has been granted. It shall be corrected annually by adding thereto such items of property as may have been exempted during the year and by striking therefrom such items as shall have lost their right of exemption and which shall be re-entered on the taxable list. After this act takes effect no additions shall be made to such exempt lists nor additional items of property exempted under any of the sections enumerated herein without the consent of the Tax Commission, but when any personal property or endowment fund of an institution has once been held by the Tax Commission to be properly exempt from taxation, it shall not be necessary to obtain the commission's consent to the exemption of additional property or investments of the same kind belonging to the same institution; but such property shall appear on the abstract filed annually with the commission. The Tax Commission shall, prior to January 1, 1925, revise the list in every county so that no property is improperly or illegally exempted from taxation; and shall have power to make further revision at any time thereafter. The county auditor shall follow the orders of the Tax Commission given under this section. An abstract of such list shall be filed annually with such commission on a form to be approved by it, and a copy thereof shall be kept on file in the office of each county auditor for public inspection." (Italics ours.)
The language of these sections is clear and unambiguous. After July 9, 1923, the effective date of Section 5570-1, General Code, the Tax Commission of Ohio had the exclusive right to place property on the exempt list. On the other hand the county auditor, in revising the annual tax list, still has the power to strike from the exempt list or duplicate "such items as shall have lost their right of exemption" and place them on the taxable list.
In so doing, it is not necessary for the county auditor to conduct hearings. His duty in so acting is purely ministerial, and not quasi-judicial.
After the transfer is made, the relator may appeal to the Tax Commission of Ohio by virtue of the provisions of Section 5616, General Code, or if the county auditor is threatening to transfer items of property of the relator from the exempt list to the taxable list, relator may proceed by way of injunction, under the provisions of Section 12075, General Code. Conn et al., Trustees, v. Jones, Treas., 115 Ohio St. 186, 152 N.E. 897. See also 84 A. L. R., 1315, 1325.
Since the county auditor, in transferring items from the exempt list to the taxable list, is acting in a purely ministerial capacity, and inasmuch as the statutes provide plain and adequate remedies which are available to the relator, a writ of prohibition will not issue. State, ex rel. Voight, Jr., v. Lueders, Probate Judge, 101 Ohio St. 211, 128 N.E. 70; State, ex rel. Harrison, a Taxpayer, v. Perry, Coroner, 113 Ohio St. 641, 150 N.E. 78; State, ex rel. MacDiarmid, v. Eastman, Judge, 118 Ohio St. 121, 160 N.E. 626.
For the reasons stated, the Court of Appeals did not err in sustaining the demurrer to relator's petition, and the judgment of that court is therefore affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, WILLIAMS and MYERS, JJ., concur.