Hammond v. Winder, 16272.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: JOHNSON
• Citation: 100 Ohio St. 433,126 N.E. 409
• Parties: HAMMOND, County Treasurer, v. WINDER.
• Docket Number: No. 16272.,16272.
• Decision Date: 23 December 1919

100 Ohio St. 433
126 N.E. 409

HAMMOND, County Treasurer,
v.
WINDER.

No. 16272.

Supreme Court of Ohio.

Dec. 23, 1919.

Error to Court of Appeals, Perry County.

Action by John H. Winder, receiver of the Sunday Creek Coal Company, against Charles W. Hammond, County Treasurer of Perry County, to enjoin the collection of certain taxes. Plaintiff's motion for judgment on the pleadings was sustained by the common pleas court, and a decree was entered permanently enjoining the collection of the taxes, and from a judgment of affirmance on appeal, defendant brings error. Judgment of Court of Appeals reversed, and cause remanded for further proceedings.

John H. Winder, Receiver of the Sunday Creek Coal Company, brought suit in the common pleas court of Perry county against Charles W. Hammond, as county treasurer, to obtain a decree enjoining the treasurer from collecting certain taxes which had been added by the county auditor to the tax lists of the county against certain real estate located in the county and owned by the company.

The petition sets out the property owned by the company in the several taxing districts of Perry county and describes it as being of a particular class, that of coal bearing and mining properties. The petition states the aggregate valuation of this property as assessed for taxation prior to the increase complained of, and alleges that it was the true valuation thereof in money. It also states the amount of taxes due on said assessed valuation, to wit, the sum of $5,514.01, which is averred to be the true amount of taxes due on said property, and further states that after said assessment to wit, on or about the 15th day of November, 1917, the county auditor arbitrarily, capriciously, and without any investigation, evidence, or information whatever to warrant such action, made an addition to the taxes upon said lands and tenements in the amount of 40 per cent. upon the amount of taxes charged against said lands and tenements. The petition sets out that the said additions were made by the auditor without any notice served upon the receiver, or upon the company, and without publication of such proposed action in any newspaper, and that the plaintiff had no knowledge thereof until after the additions had been made and certified to the defendant as county treasurer for collection.

The petition further avers that the additions so made were without authority of law, and alleges that plaintiff tendered the true amount of taxes and brings the same into court and continues the tender until the hearing and judgment of the court.

The answer of the defendant admits the increase stated, but denies that it was made arbitrarily, capriciously, or without any investigation, evidence, or information to warrant such action, and alleges that the said increased taxes arose out of the increase in the assessed valuation of the separately owned coal rights or properties of the company entered by the county auditor under statutory mandate, pursuant to an order made by the tax commission of Ohio; that upon the request of the tax commission of Ohio the county auditor, as provided in section 5612 Page & A. General Code Supp., made out and transmitted to the tax commission an abstract of the real and personal property of each taxing district of said county, in which abstract were set forth the aggregate amount and value of each class of real and personal property in said county as appeared in said auditor's tax list or on the books, statements, and returns on file in his office; that thereafter, pursuant to the provisions of section 5613, Page & A. General Code, the tax commission of Ohio proceeded to consider and determine whether the real and personal property and the various classes thereof in the several counties, cities, villages, and taxing districts of the state, including said taxing districts of Perry county, as shown by said abstract, had been assessed at their true value in money, and said commission did find and determine that the real and personal property and the various classes thereof in Perry county, as shown by said abstract, were assessed at their true value in money, except that a certain class of said property to wit, separately owned coal rights or property owned and held in the several taxing districts of the county, was not assessed at its true value in money, and with respect to this class of property that the same was assessed at less than its true value, and ordered that the assessed valuation of separately owned coal property in the county should be increased by 40 per cent.; that in obedience to an order transmitted to him by the commission, pursuant to the provisions of section 5614, Page & A. General Code Supp., the auditor forthwith added to each tract, lot, or parcel the required 40 per cent.

The answer further admits that no notice was served upon the plaintiff or the coal company with respect to such action increasing the valuation of the company's separately owned coal properties, and that no publication was made of the proposed action of the tax commission or of the county auditor in pursuance to the order of the commission. Further answering, defendant denies each and all of the allegations of the petition.

The cause was heard in the common pleas court on the plaintiff's petition, the defendant's answer and a motion made by the plaintiff for judgment on the pleadings. The court sustained the motion and entered a decree permanently enjoining the defendant from collecting the taxes complained of, and on appeal the Court of Appeals of Perry county entered a like decree. This proceeding is brought to reverse the judgments of the courts below.

Syllabus by the Court

By the provisions of section 5612, General Code (107 O. L. 35), it is the duty of each county auditor, when required by the tax commission of Ohio, to make out and transmit to the commission an abstract of the real and personal property of each taxing district in his county, in which he shall set forth the aggregate amount and value of each class of real and personal property as it appears from his tax list and from the statements in his office.

The tax commission of Ohio is required by sections 5612 to 5615, inclusive, General Code, to annually determine whether the real and personal property and the various classes thereof in the different counties, cities, villages, and taxing districts have been assessed at their true value in money. If not, the commission may increase or decrease the agregate value of the real or personal property, or any class thereof, in any such subdivision or district, by such rate per cent. or amount as will place it on the tax list at its true value in money. The commission is not empowered to act with respect to any particular piece or parcel of property of any particular owner in a taxing district. But it acts with reference to the aggregate value of the real and personal property, or any class thereof, in the district, except in cases of appeal under section 5610, General Code, and with respect to the property of public utilities.

When the county auditor has received from the tax commission a statement of an amount or rate per cent. to be added to or deducted from the valuation of such property, or class thereof, in the manner provided by section 5614, General Code, his duty is mandatory to forthwith add to, or deduct from each tract, lot, or parcel of real estate or class of real property the required per cent. or amount of the valuation thereof,...