State ex rel. Poe v. Jones

• Decision Date: 19 June 1894
• Citation: 51 Ohio St. 492,37 N.E. 945
• Parties: STATE ex rel. POE, State Auditor, v. JONES, County Auditor.
• Court: Ohio Supreme Court

37 N.E. 945

51 Ohio St. 492

STATE ex rel. POE, State Auditor, v. JONES, County Auditor.

Supreme Court of Ohio.

June 19, 1894

Application for mandamus by the state on the relation of Ebenezer W. Poe auditor of state, and others, against Charles H. Jones auditor of Lucas county. Granted.

On April 27, 1893, the general assembly of this state passed an act known as the ‘ Nichols Law,’ to amend and supplement sections 2777-2780 of the Revised Statutes of Ohio (90 Ohio Law, 330). Section 2777 defines express, telegraph and telephone companies. Section 2778 constitutes the treasurer, attorney general, and auditor of state ‘ a board of appraisers and assessors for such express telegraph, and telephone companies.’ The auditor is made president, and is to appoint the time and place for the meeting of the board. The board is required to appoint one of its members secretary, and keep full minutes of its proceedings. ‘ It shall be the duty of such board to meet in the month of May, in the present and each succeeding year, at such time as the president shall appoint.’ ‘ Said board shall proceed to ascertain the entire amount and value of the personal and real property of said express, telegraph, and telephone companies.’ The board shall have power to require from the officers of such companies ‘ a detailed statement under oath of all the items and particulars constituting such property, moneys credits, and the value thereof,’ and may inspect books and papers, and examine officers and agents under oath. The board shall report annually, ‘ on or before the first Monday in the month of June,’ to the auditor of state: (a) ‘ The total value of the property of said companies; ’ (b) ‘ the value assessed against said companies for their property in the state of Ohio; ’ (c) ‘ the distribution of the same as hereinafter provided.’ All of which shall, by the auditor of state, be communicated to the general assembly with his annual report. The board shall have all the powers possessed by county auditors under sections 2781 to 2785, inclusive, and the companies are made subject to the provisions and penalties of said sections. Section 2778a provides that each of these companies, ‘ whether chartered by the laws of this state or any other state or country,’ shall annually, between the 1st and 10th days of May, return to the auditor of state: (1) The amount of its capital stock. (2) Its place of business. (3) The par value and market value (or, if there be no market value, then the actual value) of its shares at the time of said return. (4) A statement in detail of the entire real and personal property of said companies, and where located, and the value thereof as assessed for taxation. (5) Telegraph and telephone companies shall, in addition thereto, return the whole length of their lines, and the length of so much of their lines as is without and is within the state of Ohio, including the lines controlled and used, under lease or otherwise. (6) Express companies shall include in the return a statement of their entire gross receipts for the year ending the 1st day of May, of the business done in the state of Ohio, giving the receipts of each office in the state, and the location thereof. The board, in determining the value of the property of said companies in Ohio to be assessed and taxed within the state, shall ‘ be guided by the value of said property as determined by the value of the entire capital stock of said companies, and such other evidence and rules as will enable said board to arrive at the true value in money of the entire property of said companies within the state of Ohio, in the proportion which the same bears to the entire property of said corporations, as determined by the value of the capital stock thereof, and other evidence and rules as aforesaid.’ Section 2779 provides penalties for failure on the part of officers of such companies to attend or testify before the board. Section 2780 regulates the apportionment of the valuations found of the property of telegraph and telephone companies among the several counties. The board is required to apportion the valuation among the several counties through which the lines run in the proportion that the length of the lines in the respective counties bears to the entire length in the state. The amount apportioned is to be certified by the board to the county auditor, and the county auditor apportions the amount among the cities, villages, townships, and other taxing districts. ‘ The auditor shall put the same [meaning the apportioned valuation] on the tax list to be assessed, and the taxes thereon collected the same as taxes assessed and collected on other personal property. And the rate of taxation shall be the same as that assessed against real and personal property in said cities.’ Section 2780a provides for the apportionment of valuations of express companies among the several counties in which they do business in the proportion that the gross receipts in each county bear to the gross receipts in the state. The board is to certify its valuation to the auditor. The auditor is to apportion the amount for the county to the taxing districts therein, and there is the same provision as to placing the apportioned valuation upon the tax list, and subjecting it to the local rate of taxation, as in section 2780, relating to telegraph and telephone companies. Section 2780b provides that these companies shall not be required to make returns under section 2744, governing the returns and the appraisements or assessments of corporations generally; and, further, that the valuation of all real estate of the companies situated in this state shall be deducted from the total valuation of the property of the companies as fixed by the board. The board duly apportioned the valuation of the property in Ohio of the National Express Company-a foreign corporation-among the several counties of Ohio in which said express company did business, apportioning $754 to Lucas county, and certifying that amount to the defendant, Charles H. Jones, as auditor of that county; but said auditor refused to apportion the amount so certified to him among the cities, villages, townships, and districts in Lucas county, and to put the same on the tax list of said county, to be assessed, and taxes thereon collected, as on other personal property. Thereupon this proceeding in mandamus was brought by the board to compel said auditor so to do.

The petition avers that the suit is brought on the relation of Ebenezer W. Poe, auditor of state, John K. Richards, attorney general, and William T. Cope, treasurer of state, of the state of Ohio; that they, as such officers, constitute the board of appraisers and assessors for express, telegraph, and telephone companies in the state of Ohio, under the act of April 27, 1893; that, acting under and by virtue of authority conferred upon them by said act, they, as such board, prior to the 22d day of November, 1893, duly fixed and determined the value of the property of the National Express Company in Ohio for the year 1893, to be taxed therein, at the sum of $9,450; that, acting in accordance with the provisions of said act, they duly apportioned the valuation of the property of said express company among the several counties in Ohio in which said express company did business, apportioning to Lucas county, Ohio, the sum of $754; that said petitioners certified to the defendant, Charles H. Jones, as auditor of Lucas county, the foregoing amount apportioned to his county of the total valuation of said express company in Ohio; that the defendant received said certificate, and that thereupon it became and was and is his duty, as auditor of Lucas county, to apportion said sum of $754 among the cities, villages, townships, and districts, or parts thereof, in Lucas county, and to put the same on the tax list of Lucas county, to be assessed as taxes, and collect the same as taxes assessed and collected on other personal property, and the rate of taxation to be the same on said apportioned valuation thus certified as that assessed against real and personal property in said cities, villages, townships, and districts in Lucas county. The petition further avers that the defendant, claiming that the act of April 27, 1893, creating a state board of appraisers and assessors of the property of express, telegraph, and telephone companies, under which said board had acted in assessing the property of the company named in Ohio, and apportioning the valuations among the several counties, including Lucas, and certifying to said Lucas county its proportion of the valuations, as aforesaid, was and is unconstitutional and void in that it was a violation of the provisions of the constitution of the United States and the constitution of the state of Ohio, has refused, and still refuses, to apportion the valuation certified to him by said board as aforesaid, and refuses to place the same on the tax list to be assessed, and taxes thereon collected, the same as taxes assessed and collected on other personal property; and refuses to perform any duty imposed on him by the said act. And said petition prays that a writ of mandamus might issue against the said defendant, commanding him forthwith to apportion the amount assessed against the said express company, and certified to him, as aforesaid, to the cities, villages, townships, and districts, or parts thereof, in Lucas county, and to place the same on the tax list, to be assessed and taxes collected thereon, the same as taxes assessed and collected on other real and personal property, etc.

To this petition the defendant answered. The answer admits the creation of the board as alleged in the petition, and that the defendant, as auditor of Lucas county, refused to apportion the valuation thus...