Oskamp v. Lewis

• Decision Date: 31 August 1900
• Citation: 103 F. 906
• Parties: OSKAMP v. LEWIS, Auditor, et al.
• Court: U.S. District Court — Southern District of Ohio

103 F. 906

OSKAMP v. LEWIS, Auditor, et al.

United States Circuit Court, S.D. Ohio, Western Division.

August 31, 1900

Chas W. Baker and Keam & Keam, for complainant.

Rendigs Foraker & Dinsmore and Edward Barton, for respondents.

THOMPSON District Judge.

This is a bill to enjoin the collection of a tax levied upon the property of the complainant in Hamilton county, state of Ohio, upon the ground that the statutes of Ohio under which the property was listed and valued for taxation, and the tax levied, is in contravention to that clause of the fourteenth amendment to the constitution of the United States which forbids any state from depriving any person of property without due process of law. The defendants demur to the petition upon the ground that it does not state facts sufficient to entitle the complainant to the relief prayed for. The constitutional objections are (1) that sections 2781 and 2782 of the Revised Statutes of Ohio, under which the complainant's property was listed and valued for taxation, do not provide for notice to the taxpayer of the proceedings thereunder; (2) that the county auditor, who lists and values property for taxation under those sections acts in a judicial capacity, and, under the provisions of section 1071 of the Revised Statutes of Ohio, relating to taxation, receives as compensation for his services in so listing and valuing property 4 per cent. of the tax levied and collected thereon.

These sections read as follows:

'Sec. 2781. If any person whose duty it is to list property or make a return thereof for taxation, either to the assessor or county auditor, shall in any year or years make a false return or statement, or shall evade making a return or statement, the county auditor shall for each year, ascertain as near as practicable, the true amount of personal property, moneys, credits and investments that such persons ought to have returned or listed for not exceeding the five years next prior to the year in which the inquiries and corrections provided for in this and the next section are made; and to the amount so ascertained as omitted, for each year he shall add fifty per centum, multiply the omitted sum or sums, and (as) increased by said penalty by the rate of taxation belonging to said year or years, and accordingly enter the same on the tax lists in his office, giving a certificate therefor to the county treasurer who shall collect the same as other taxes.'

'Sec. 2782. The county auditor, if he shall have reason to believe, or be informed that any person has given to the assessor a false statement of the personal property, moneys, or credits, investments in bonds, stocks, joint stock companies or otherwise, or that the assessor has not returned the full amount required to be listed in his ward or township, or has omitted or made an erroneous return of any property, moneys, or credits, investments in bonds, stocks, joint stock companies, or otherwise, which are by law subject to taxation, shall proceed at any time before the final settlement with the county treasurer to correct the return of the assessor, and to charge such persons on the duplicate with the proper amount of taxes; to enable him to do which, he is hereby authorized and empowered to issue compulsory process, and require the attendance of any person or persons whom he may suppose to have a knowledge of the articles, or value of the personal property, moneys, or credits, investments in bonds, stocks joint stock companies, or otherwise, and examine such person or persons, on oath, in relation to such statement or return; and it shall be the duty of the auditor, in all such cases, to notify every such person before making the entry on the tax-list and duplicate, that he may have an opportunity of showing that his statement or return of the assessor was correct; and the county auditor shall, in all such cases, file in his office a statement of the facts or evidence upon which he made such correction; but he shall, in no case, reduce the amount returned by the assessor, without the written assent of the auditor of state, given on a statement of facts submitted by the county auditor. In all cases in which any person shall make a false statement of the amount of property for taxation, to evade the payment of taxes, in whole or in part, the person making such false statement shall be liable for, and pay all costs and expenses that may be incurred under the provisions of this section, and the same fees and costs shall be allowed

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