State ex rel. Williams v. Glander

• Decision Date: 25 June 1947
• Docket Number: 30879.
• Citation: 148 Ohio St. 188,74 N.E.2d 82
• Parties: STATE ex rel. WILLIAMS v. GLANDER.
• Court: Ohio Supreme Court

74 N.E.2d 82

148 Ohio St. 188

STATE ex rel. WILLIAMS v. GLANDER.

No. 30879.

Supreme Court of Ohio

June 25, 1947

Syllabus by the Court.

1. Section 16 of Article I of the state Constitution is not self-executing and, in the absence of enabling legislation suit may not be brought against the state. (Palmer v. State, 96 Ohio St. 513, 118 N.E. 102 approved and followed.)

2. The Department of Liquor Control is an administrative department of state government. It is not a separate entity.

3. The personal property used by the Department of Liquor Control belongs exclusively to the state of Ohio.

4. No duty is specially enjoined upon the Tax Commissioner of Ohio to levy and assess personal property taxes on the personal property held or used by the Department of Liquor Control.

5. Unless the state is expressly named or referred to therein it is not bound by the terms of a general statute. (Paragraph three of State ex rel. Parrott v. Board of Public Works, 36 Ohio St. 409, approved and followed.)

6. Neither the word 'person,' 'taxpayer' nor 'corporation,' as used in Part Second, Civil, Title I, Taxation, Section 5320 et seq., General Code, is meant to include the state of Ohio.

7. Under Section 4 of Article XII of the state Constitution it is the duty of the General Assembly to provide for raising revenue sufficient to defray the expenses of the state. The state revenue provided in Section 6064-10, General Code, is a proper classification of and substitute for personal property taxes levied and assessed under Part Second, Civil, Title I, Taxation, Section 5320 et seq., General Code.

8. The failure of the state to levy, assess and collect personal property taxes under Section 5320 et seq., General Code, while collecting the tax or charge made under Section 6064-10, General Code, is not a denial of due process or of equal protection of the law to any citizen or person.

9. Under Section 2 of Article XII of the state Constitution, the General Assembly has the power to determine the subjects and methods of taxation and exemption of personal property, limited only by Article I of the state Constitution. (Paragraphs one and two of the syllabus of State ex rel. Struble v. Davis et al., Tax Comm., 132 Ohio St. 555, 9 N.E.2d 684, and paragraph one of the syllabus of Zangerle, Aud., v. Republic Steel Corp., 144 Ohio St. 529, 60 N.E.2d 170, approved and followed.)

10. Section 5351, General Code (120 Ohio Laws, 407), exempts from taxation all personal property belonging exclusively to the state of Ohio. (Paragraph five of the syllabus of Federal Public Housing Authority v. Guckenberger, Aud., 143 Ohio St. 251, 55 N.E.2d 265, and paragraph seven of syllabus of Zangerle, Aud., v. City of Cleveland, 145 Ohio St. 347, 61 N.E.2d 720, distinguished.)

11. Whether the Liquor Control Act (House Bill No. 1, 115 Ohio Laws, pt. 2, 118, and its amendments), creating the Department of Liquor Control enacted pursuant to a proclamation of the Governor, prescribed a wise plan is not for the courts to decide. So long as an act of the General Assembly is constitutional, the question of policy is solely for the legislative branch of our state government to determine. Such act does provide the General Assembly's plan for the lawful taxation, regulation and control of the liquor traffic.

Appeal from Court of Appeals, Franklin County.

HART, J., WEYGANDT, C. J., and STEWART, J., dissenting.

Appellant, as relator, filed his amended petition in the Court of Appeals of Franklin county, seeking a writ of mandamus commanding the respondent, C. Emory Glander, Tax Commissioner of Ohio, to levy and assess personal property taxes on all personal property 'located and used by the Department of Liquor Control in the state of Ohio.'

Respondent demurred to the petition, which demurrer was sustained by the Court of Appeals and the amended petition dismissed.

The case having originated in the Court of Appeals the appeal to this court is of right (Section 2, Article IV of the Constitution).

Meyer A. Cook, of Cleveland, for appellant.

Hugh S. Jenkins, Atty. Gen., and Aubrey A. Wendt, of Columbus, for appellee.

TURNER Judge.

While appellant has argued a number of subsidiary questions, we conclude that there are five principal questions presented by the amended petition and the demurrer thereto, viz:

(1) Is this an action against the state of Ohio?

(2) If this is not an action against the state, does the law specially enjoin upon respondent a duty to levy and assess personal property taxes on all (or any) of the personal property controlled and used by the Department of Liquor Control?

(3) Is the gallonage tax provided for in Section 6064-10, General Code, and/or the markup provided for in Section 6064-3, paragraph 2, General Code, a lawful substitute for general property taxes on personal property held and used by the Department of Liquor Control?

(4) Are either the due process or the equal protection clauses of the state or federal Constitution violated?

(5) Does Section 5351, General Code, authorize immunity from taxation of personal property owned by the state?

(1) Appellant (relator) complains that the Court of Appeals erred in holding that the state of Ohio is not a taxpayer within the purview of Section 5320, General Code, and 'in failing to hold that the state of Ohio was subject to taxation insofar as the personal property used in business by the Department of Liquor Control was concerned and in failing, therefore, to overrule said demurrer of the respondent-appellee.'

In his amended petition relator alleged 'that said Department of Liquor Control is a separate body corporate * * * that the said Department of Liquor Control is engaged in the business of buying, selling and distributing spirituous liquor * * * throughout the state of Ohio * * * that the Department of Liquor Control owns, operates, manages and controls personal property located and used in business in the state of Ohio.' (Italics ours.)

The foregoing allegations are incorrect conclusions of law. If they were to be considered as conclusions of fact, we may take judicial notice of their incorrectness as they are allegations respecting the nature and function of a department of state government. The Department of Liquor Control is an administrative department of the state of Ohio. Section 154-3, Section 6064-3 and Section 6064-8, General Code, inter alia. Such department is not a corporation of any kind.

Section 1 of Article XIII of the Constitution provides that 'The General Assembly shall pass no special act conferring corporate powers,' while Section 2 of that Article provides that 'corporations may be formed under general laws.' We take judicial notice of the fact that the Department of Liquor Control has not been incorporated under general laws. In his reply brief relator admits: 'We, of course, admit that there cannot be any special corporation acts today and that the creation of this department was properly made by virtue of the necessity of the regulation of the sale of spirituous liquors. * * *'

Recognizing the weakness of his position in his amended petition, relator here claims (without further amendment) that the state of Ohio comes within the definition of a taxpayer under Section 5320 and elsewhere in the General Code. Relator also contends that the state is 'a person doing business in this state.' (Italics ours.) Contrary to the allegations of his amended petition relator now says in his brief: 'Certainly the state of Ohio owns certain personal property of the Department of Liquor Control * * *.' However, relator shuttles back and forth on the question of the ownership of the property sought to be assessed.

Unquestionably the personal property held and administered by the Department of Liquor Control belongs to the state of Ohio.

Section 16 of Article I of the Constitution provides: 'Suits may be brought against the state, in such courts and in such manner, as may be provided by law.' This constitutional provision is not selfexecuting and has not been implemented by legislative action to cover such a case as we have here.

In 37 Ohio Jurisprudence, 268, Section 44, it is said: 'In accordance with the general rule that the state cannot be used without its consent, suits against officers of the state, as representing the state in action and liability where the state, though not a party to the record, is the real party against which relief is sought and where a judgment for the plaintiff, though nominally against the defendant as an individual, could operate to control the action of the state or subject it to liability, are treated as suits against the state.'

In 59 Corpus Juris, 313, Section 468, it is said: 'A suit, involving property in which the state has an undoubted right or interest, and in which no effective decree can be rendered without binding the state itself, is a suit against the state and cannot be maintained without its consent. * * *'

In 49 American Jurisprudence, 304, Section 92, it is said 'While a suit against state officials is not necessarily a suit against the state, within the rule of immunity of the state from suit without its consent, that rule cannot be evaded by bringing an action nominally against a state officer or a state board, commission, or department in his or its official capacity when the real claim is against the state itself, and the state is the party vitally interested. If the rights of the state would be directly and adversely affected by the judgment or decree sought, the state is a necessary party defendant, and if it cannot be made a party, that is, if it has not consented to be sued, the suit is not maintainable. The state's immunity from suit without its consent is absolute and unqualified, and a...