State ex rel. Morgenthaler v. Crites

• Decision Date: 24 February 1891
• Citation: 48 Ohio St. 142,26 N.E. 1052
• Parties: STATE ex rel. MORGENTHALER v. CRITES, Auditor.
• Court: Ohio Supreme Court

26 N.E. 1052

48 Ohio St. 142

STATE ex rel. MORGENTHALER v. CRITES, Auditor.

Supreme Court of Ohio.

February 24, 1891

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Error to circuit court, Allen county.

The plaintiff in error filed in the circuit court of Allen county, Ohio, a petition against the defendant in error, praying for a writ of mandamus ‘ requiring him to proceed upon the facts and evidence placed before him by the relator, and ascertain, as far as practicable, and enter for taxation on the tax-lists of said county, * * * any personal property, moneys, credits, investments in bonds, stocks, or otherwise, owned by Calvin S. Brice,’ in any of the ‘ five years running back from the year 1889,’ and subject to taxation in said county, which petition reads as follows:

‘ The state of Ohio, circuit court of Allen county. The state of Ohio, on relation of Henry W. Morgenthaler, Plaintiff, against Cyrus D. Crites, County Auditor of Allen County, Ohio, Defendant. Petition. The relator says: That he is a resident citizen of the state of Ohio, and owner of property in said state assessed for and subject to taxation therein, and is a tax-payer of said state, and that he is and has been employed under a contract of date May 26, 1888, made with him by the county auditor, county treasurer, and county commissioners of said Allen county, and has given bond, pursuant to the provisions of an act of the general assembly of Ohio entitled ‘ An act to secure a fuller and better return of property for taxation, and prevent omissions of property from the tax duplicate,’ passed and taking effect April 10, 1888. That said contract specifies that he is to ascertain and furnish to the auditor of said county, at his own cost and expenses, the facts and evidence necessary to authorize said auditor to subject to taxation any property improperly omitted from the tax duplicate, and for his services therein, out of money actually paid into the county treasury on account of such charges upon the duplicate, but not otherwise, shall be entitled to receive and be paid by warrant of the county auditor upon the county treasurer, one-fifth or twenty per centum of said money, which said warrant of the county auditor is the only act or proceeding to be done or had by said auditor under said contract. That the defendant, Cyrus D. Crites, is the county auditor of said Allen county, and that the statutes of the state of Ohio charge it upon the county auditors throughout the state, by their office, on being informed or having reason to believe that any person whose duty was to list or return for taxation personal property, moneys, credits, or investments, has made a false return or evaded making a return, to ascertain, as near as practicable, the true amount that such person ought to have returned or listed for the year of said inquiries, and for not exceeding the five years next prior thereto, and to enter said amounts upon the tax-list against such person, with the taxes thereon at the proper rate for each year, and to give a certificate thereof to the county treasurer for collection. That heretofore, to-wit, August 10, 1888, the then county auditor of said county, at the instance of relator, in discharge of his duties under said contract, issued notice to one Calvin S. Brice, then being in the city of New York, of discovery by relator of error in the tax returns of said Brice in said Allen county, and notifying said Brice to appear before said auditor, August 28, 1888, and show cause why said return should not be corrected, and the omission placed on the treasurer's duplicate for collection; which said notice was duly served by relator in said city of New York personally upon said Brice, who paid no attention thereto but to announce that he would have the law repealed, and he did not appear at the time nor at any time before said auditor, and instead, on said August 28, 1888, appeared for him as his attorney John E. Richie, Esq., with a request to said auditor to lay the matter over for a time, and it was so laid over by said auditor upon said request, without his fixing the time, and remained so laid over for the rest of the term of said county auditor, with no further action by him, and until the term of office of defendant, as his successor.

‘ That thereupon, to-wit, September 3, 1889, at the instance of relator, the defendant, as said county auditor, issued a second notice, reciting the former notice as aforesaid to said Calvin S. Brice, and that said Brice had failed to appear, and in said notice fixing September 16, 1889, as the day on which said Brice should have an opportunity of showing that his said tax returns were correct, or that, in default, said auditor, from the statement and evidence furnished by relator, would proceed to assess and charge said Brice upon the tax duplicate of said county with the amounts and for the years found against him, which said notice was mailed by said defendant to said Brice in said city of New York, but said Brice did not answer nor appear on the day named, nor on September 19, 1889, nor on September 24, 1889, to which successive days said hearing was continued by defendant, and on said last-named day defendant of his own motion postponed further action until October 2, 1889, to give opportunity, as his entry of said continuance recited, for said Brice to appear, and to enable said defendant to examine the evidence, and, September 27, 1889, upon petition of said Calvin S. Brice, filed that day in the court of common pleas of said county, and affidavit that for each of the six years last past said Brice had made correct, full, and complete return of all his property of every kind and description subject to taxation in said county, the said defendant was, by allowance of injunction by Hon. JOHN E. RICHIE, then one of the judges of said court, enjoined from proceeding further until other order of said court or judge. That thereupon, at expense of relator, attorneys were employed, with the assent of said defendant, to represent him in the matter, and notice for taking the deposition of said Brice in New York city was served upon the attorneys of said Brice, and affidavit was made by defendant for process upon said Brice so to appear and testify, in which affidavit it is sworn, among other things, by defendant, that he was informed and had reason to believe that the tax returns of said Brice for each of the years from 1884 to 1889, both inclusive, were false returns, and the day fixed for taking said deposition, and to which said process served upon Brice was returned, was October 10, 1889; but before that day, upon application of the attorneys of said Brice, without notice at the time to relator, and against his protest, upon becoming informed, the said defendant postponed all further action to be taken by him as auditor by a continuance until November 1, 1889, this not with standing injunction against any step in the proceedings; and thereupon, on approach of the day when said Brice was to appear under process and testify, that is to say, in the afternoon before that day, said injunction suit in Allen county was dismissed by said Brice by his attorneys there upon their motion, and his attorneys in New York city, on the next day, appeared for him at the taking of said deposition with a telegram of said dismissal, and with instructions to say from said Brice he would not appear and testify, and said defendant like wise telegraphed notice of said dismissal. That said injunction suit being so dismissed, relator immediately pressed upon said defendant to move in the matter, and that he take up the evidence, and as county auditor ascertain as near as practicable the true amounts that said Calvin S. Brice ought to have returned for taxation in each of the years, but said defendant contemporaneously with the dismissal of said suit by the attorneys of Brice had been supplied with an opinion by the prosecuting attorney of said county, wherein, after caution to said defendant against the harassment of the citizen, said defendant was advised of his duty, that it was to require of relator to make out a prima facie case,-in other words, by witnesses competent to testify, and to be subpoenaed by said auditor, if within the jurisdiction, or by proper records duly authenticated, to furnish to said defendant the kind of property omitted, the value of the same, and what it was worth each of the years,-and that after such prima facie case had been made, then, before placing any amount on the duplicate, the said auditor must cite said Brice, and give him opportunity to correct the returns already made, and show him the evidence against him; and said defendant, although first offering to permit discussion by relator of said opinion, and fixing a future day therefor, then declined to hear any discussion, and declined to refer to the auditor of state or attorney general for advice, and announced that said prosecuting attorney was his constituted legal adviser, and that said opinion would protect him, said auditor, from responsibility. That after said decision of said defendant, he professing readiness to continue further action until after the approaching election in November, and being so requested by relator, who was taken by surprise at said decision, did so continue it after a conference of his own with the attorneys of said Brice, to November 22, 1889, and from said date continued the day again to January 16, 1890, against the protest of relator at the length of the time.

‘ That after said last continuance, to-wit, December 16, 1889 relator being required under said opinion of said county prosecuting attorney to place before said defendant as county auditor,...