State ex rel. Zupancic v. Limbach

• Decision Date: 27 March 1991
• Docket Number: No. 89-734,89-734
• Citation: 58 Ohio St.3d 130,568 N.E.2d 1206
• Parties: The STATE, ex rel. ZUPANCIC et al., v. LIMBACH, Tax Commr.
• Court: Ohio Supreme Court

Page 130

58 Ohio St.3d 130

568 N.E.2d 1206

The STATE, ex rel. ZUPANCIC et al., v. LIMBACH, Tax Commr.

No. 89-734.

Supreme Court of Ohio.

Submitted Nov. 13, 1990.

Decided March 27, 1991.

Syllabus by the Court

1. Pursuant to Section 26, Article II of the Ohio Constitution, a court should inquire into the purpose underlying a statutory classification where such classification causes disparate results, and if the statute achieves a legitimate governmental purpose and operates equally on all persons or entities included within its provisions it shall be deemed constitutional.

2. R.C. 5727.15(C) is a general statute that operates uniformly since it may apply to any taxing district in the state which contains an electric plant with an initial cost of production equipment exceeding $1 billion, it is premised on a calculable cost element of power production, and it operates equally on all taxing districts which fall within its provisions. (Section 26, Article II of the Ohio Constitution, construed.)

Relators, Edward Zupancic as the Lake County Auditor, Robert Gardner, Mildred Teuscher and John Platz as the Lake County Board of Commissioners, Steven C. LaTourette as the Lake County Prosecuting Attorney, and the Perry Township Board of Trustees have brought the instant action in mandamus in order to require respondent, Joanne Limbach, as Tax Commissioner of Ohio, to apportion public utility property values to taxing districts according to the apportionment formula that existed prior to Am.Sub.S.B. No. 449 (effective November 28, 1988), i.e., former R.C. 5727.15(D). Specifically, relators claim that Am.Sub.S.B. No. 449, to the extent that it enacted R.C. 5727.15(D), now (C), is unconstitutional in that the statute is of a general nature, but it does not have uniform operation as required under the Ohio Constitution. Furthermore, relators allege that the statute is arbitrary and unreasonable and thus violates the Equal Protection Clause of the Ohio Constitution. Respondent asserts that a mandamus action is inappropriate under the facts of this case and, even assuming arguendo that the requested relief is deemed appropriate, the current apportionment formula is constitutional.

Respondent is responsible for certifying to county auditors her assessment of taxable public utility property apportioned to each taxing district within their respective counties on or before the first Monday in October, pursuant to R.C. 5727.23. The Perry Nuclear Power Plant is an electric power plant with an initial cost of plant production equipment exceeding $1 billion, and all of its potentially taxable production equipment subject to the aforementioned apportionment law is located within Lake County, Ohio. Accordingly, respondent is obligated to certify the value of the Perry Nuclear Power Plant and apportion the taxable value of the property among various taxing districts. See R.C. 5727.23 and 5727.15.

Steven C. LaTourette, Pros. Atty., William L. Sheroke and Michael P. Brown, for relators.

Lee I. Fisher, Atty. Gen., and James C. Sauer, for respondent.

HOLMES, Justice.

The central issue before this court is whether R.C. 5727.15(C), ¹ which classifies taxing districts into one(s) containing an electric company plant having production equipment with an initial cost exceeding $1 billion and ones containing a plant having such property under this amount, is permissible under the Ohio Constitution. For the reasons that follow, we answer this query in the affirmative.

As a threshold to our inquiry we are confronted with respondent's assertion that relators have improperly invoked this court's original jurisdiction. Therefore, we will determine the propriety of the mandamus action under the present facts and then address the merits of relators' request.

I

In respondent's first proposition of law she asserts that relators are attempting to have this court mandate a non-compliance with the respondent's statutory duty, thereby enjoining the respondent. Consequently, the relators' request is for an injunction rather than mandamus. Moreover, respondent claims mandamus is not the appropriate forum to test the constitutionality of R.C. 5727.15(C), since there are adequate remedies at law via a declaratory judgment action.

We note initially that this court's original jurisdiction is triggered when a party files a complaint in mandamus. Section 2(B)(1)(b), Article IV of the Ohio Constitution; R.C. 2731.02. And pursuant to R.C. 2731.01, "mandamus" has been defined as " * * * a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station."

Moreover, in order for this court to grant a writ of mandamus we must find " * * * that the relator has a clear legal right to the relief prayed for, that the respondent is under a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law." State ex rel. Westchester Estates, Inc. v. Bacon (1980), 61 Ohio St.2d 42, 15 O.O.3d 53, 399 N.E.2d 81, paragraph one of the syllabus; see, also, R.C. 2731.05. Furthermore, this court has indicated on several occasions that it will not entertain injunction actions. In State ex rel. Smith v. Indus. Comm. (1942), 139 Ohio St. 303, 22 O.O. 349, 39 N.E.2d 838, paragraphs one, two, and three of the syllabus, this court stated:

"Original jurisdiction is conferred upon the Supreme Court by the state Constitution only in quo warranto, mandamus, habeas corpus, prohibition and procedendo. The court is without authority to entertain an action in injunction instituted therein.

"A writ of mandamus compels action or commands the performance of a duty, while a decree of injunction ordinarily restrains or forbids the performance of a specified act.

"A proceeding wherein an order is sought directing the Industrial Commission of Ohio to 'cease disbursing' certain funds is essentially one in injunction and not mandamus, and is not within the original jurisdiction of the Supreme Court."

Thus, this court will scrutinize pleadings in order to assure that actions filed by parties requesting mandamus relief are consistent with our prior decisions as to the form and substance of the relief sought. For example, in State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O.2d 141, 228 N.E.2d 631, paragraphs four and five of the syllabus, this court acknowledged that it would go beyond the pleadings to determine whether the desired relief was actually for mandamus:

"Where a petition filed in the Supreme Court or in the Court of Appeals is in the form of a proceeding in mandamus but the substance of the allegations makes it manifest that the real object of the relator is for an injunction, such a petition does not state a cause of action in mandamus and since neither the Supreme Court nor the Court of Appeals has original jurisdiction in injunction the action must be dismissed for want of jurisdiction. (State ex rel. Stine v. McCaw, 136 Ohio St. 41, 23 N.E.2d 631; State ex rel. v. Hahn, 50 Ohio St. 714, 35 N.E. 1052; State ex rel. Libbey-Owens-Ford Glass Co. v. Industrial Commission, 162 Ohio St. 302, 123 N.E.2d 23, approved and followed.)

"Where a petition stating a proper cause of action in mandamus is filed originally in the Supreme Court, and it is determined that there is no plain and adequate remedy in the ordinary course of the law by way of an appeal, the Supreme Court has no authority to exercise jurisdictional discretion and the refusal to exercise jurisdiction on the ground that either of the extraordinary remedies of statutory mandatory injunction (Section 2727.01 et seq., Revised Code) or statutory mandamus (Section 2731.01 et seq., Revised Code) is available in the Common Pleas Court, is constitutionally impermissible under the last sentence of Section 2 of Article IV of the Ohio Constitution. * * * " (Citations omitted.)

In the case at bar, relators do not seek a prohibitory injunction. Although the relators' request is for this court to have the respondent refrain from exercising her statutory responsibility, the essence of their request is for respondent to abide by a former statute. In exercising our original jurisdiction we will necessarily have to address the constitutionality of R.C. 5727.15(C) and decide whether to prevent respondent from carrying out the task required under the present apportionment statute; however, these decisions are only ancillary to our consideration of the writ itself on the merits.

This court has previously held that a mandamus action may test the constitutionality of a statute. State ex rel. Michaels v. Morse (1956), 165 Ohio St. 599, 608, 60 O.O. 531, 536, 138 N.E.2d 660, 666 ("[t]he right of relator to question, by mandamus, the constitutionality of the statute is recognized in Ohio"); State ex rel. Brown v. Summit Cty. Bd. of Elections (1989), 46 Ohio St.3d 166, 167, 545 N.E.2d 1256, 1258. Moreover, where this court has found a statute unconstitutional it may direct the public bodies or officials to follow a constitutional course in completing their duties. See State ex rel. Park Invest. Co. v. Bd. of Tax Appeals (1971), 26 Ohio St.2d 161, 55 O.O.2d 338, 270 N.E.2d 342 (where this court in a mandamus proceeding directed the Board of Tax Appeals to comply with this court's earlier decision in the same case after finding two tax statutes unconstitutional).

Furthermore, this court has recognized that the availability of a declaratory judgment or mandatory injunction action will not usually defeat a request for a writ of mandamus under certain conditions. Specifically, in State ex rel. Fenske v. McGovern (1984), 11 Ohio St.3d 129, 11 OBR 426, 464 N.E.2d 525, paragraphs one and two of the syllabus provide:

"The extraordinary remedy of mandatory injunction in the court of common pleas is not a plain and adequate remedy in...