Opinion
No. 27216
Decided June 14, 1939.
Constitutional law — Statute invalid in part and valid as to residue — County auditor — No limitation for placing omitted taxable personal property upon duplicate — Section 5398, General Code — Mandamus — Official discretion not controlled but exercise of discretion compelled by writ — County auditor a ministerial officer exercising discretion, when — Mandamus lies to compel investigation whether taxable personal property omitted from duplicate — Insufficient facts pleaded in petition, when.
1. A statute may be invalid in part, by reason of some provisions being repugnant to the state Constitution, and valid as to the residue, where it appears that the invalid part is an independent provision, not in its nature and connection essential to the other parts of the statute, nor so related to the general purpose of the enactment as to warrant the conclusion that the Legislature would have refused to adopt it with the invalid part stricken out. ( Gager, Treas., v. Prout, 48 Ohio St. 89, approved and followed.)
2. There is no statutory limitation as to time within which a county auditor may place omitted taxable personal property upon the duplicate by virtue of Section 5398, General Code, for the period beginning with the year 1926 and ending with 1931.
3. Official discretion can not be controlled by mandamus in the absence of fraud, bad faith or abuse of discretion; but if a public officer declines to act in toto in a matter involving the exercise of discretion a writ of mandamus may issue to compel him to act.
4. A county auditor is a ministerial officer but to some extent exercises discretion in placing omitted taxable personal property on the duplicate under and by virtue of Section 5398, General Code.
5. A county auditor is charged by Section 5398, General Code, with the duty to investigate the tax return of a person when he believes or has reason to believe that personal property has been improperly omitted by such person from his return for any year or years beginning with 1926 and ending with 1931; and when he declines to act upon reasonable information, an action in mandamus may be maintained to compel him to proceed with a hearing or examination and to make a finding as to whether taxable personal property has been omitted from the duplicate by such person for any such year or years.
6. A petition in an action in mandamus to compel a county auditor to proceed to inquire as to omitted taxable personal property in exercise of the duty imposed upon him by Section 5398, General Code, does not state facts sufficient to constitute a cause of action when the allegations thereof fail to show that the county auditor has information that taxable property has been improperly omitted by a particular person from his return, and that the county auditor has expressly or impliedly declined to examine and investigate such return and make a finding as to the omitted property.
APPEAL from the Court of Appeals of Cuyahoga county.
On March 21, 1938, a petition was filed in the Court of Appeals of Cuyahoga county, Ohio, by the state of Ohio on relation of The Greenward Realty Company, appellant, against John A. Zangerle, county auditor, and John J. Boyle, county treasurer, appellees, seeking a writ of mandamus to compel the placing of omitted taxable personal property on the duplicate and to restrain the appellees from destroying certain personal property tax returns and assessment certificates.
The petition reads as follows:
"Relator says that it is a corporation, organized under and by virtue of the laws of the state of Ohio, with its principal place of business at Cleveland, Cuyahoga county, Ohio, and has been since its organization and is now a taxpayer of Cuyahoga county, Ohio, and that this action is brought as such taxpayer and in behalf of all taxpayers of the state of Ohio, for the purpose of securing additional tax revenue, which otherwise would be lost to the state of Ohio and to remedy an improper administration of the tax laws of such state.
"Relator further avers that the defendant, John A. Zangerle, is now and at times mentioned herein was the duly elected, qualified and acting auditor of Cuyahoga county, Ohio.
"Relator further avers that the defendant, John J. Boyle, is the duly elected, qualified and acting treasurer of Cuyahoga county, Ohio.
"Relator further avers and alleges that Section 5398 General Code of Ohio provides that one of the duties of county auditors is to make investigations to ascertain and determine for the years beginning with 1926 and ending with the year 1931, whether any person required by law, has made a false return, or has evaded making a return, or has withheld from or failed to include in such return, any property, either tangible or intangible, required by the law in force in any such year or years to be listed for taxation and that if he finds that the person so required by law to list property or to make a return thereof for taxation, has made a false return or has evaded making a return, or has withheld from or failed to include in such return or statement any taxable property either tangible or intangible, required by law to be so listed, he shall determine as nearly as practicable the true amount of the value of the personal property, moneys, credits and investments which such person failed to return or upon which he should have been, but was not taxed for the year 1926, and for any year or years subsequent thereto up to and including the year 1931, and assess the sum so omitted for any of said years at the rate of taxation belonging to such years, together with a penalty of fifty per cent, and to place same on the proper tax list, giving a certificate therefor to the county treasurer who shall collect it as other taxes.
"Relator further alleges and avers, upon information and belief that the defendant, John A. Zangerle, on June 30, 1931, had under consideration and investigation, a number of persons and estates that had failed to file returns — had filed false returns or had withheld or failed to include in the returns on statements filed, taxable property, either tangible or intangible, required by law to be listed in such returns, for the taxable years 1926 to 1930 inclusive; that his further action in continuing such investigations and in making additional assessments — and that of the defendant, John J. Boyle, in making additional collections for said years, was stayed by an act of the Ohio state Legislature, 114 Ohio Laws 746, General Code 5398-1, effective June 30, 1931, which provided for the issuance of certificates of immunity by the Tax Commission of the state of Ohio, granting immunity to and staying the investigations, assessments and collection of original or additional taxes for the years 1926 to 1931 inclusive, asserted against any person making application for such certificate, after such person had rendered a correct personal property tax return for the year 1932, and had listed therein fully and in good faith the taxable personal property required by the law in force in said year to be listed therein, and the Tax Commission found such to be the fact.
"Relator further alleges and avers, upon information and belief, that the estates of the following decedents:
Carrie Baldwin Lawrence Hitchcock Mary Saunders Clark Henry P. McIntosh Coralie Walker Hanna Francis F. Prentiss John L. Severance Asa Shiverick Katherine D. Lamprecht
now in the process of administration, and under the jurisdiction of the Probate Court of Cuyahoga county, Ohio, are the owners of substantial amounts of personal property and other undistributed assets; that the decedents of the aforesaid estates filed incorrect personal property tax returns for the taxable years 1926 to 1930 inclusive, in that they withheld or failed to include in such personal property tax returns filed for said years, all their personal property required by the law in force for such years to be listed for taxation.
"Relator further alleges and avers that on June 30, 1937, the Supreme Court of the state of Ohio in the matter of The State of Ohio, ex rel. Hostetter, Appellee, v. Hunt et al., 132 Ohio St. 569, declared unconstitutional and void that part of the Intangible Tax Act of Ohio enacted in 1931, 114 Ohio Laws, 776, 778, giving to the Tax Commission of Ohio power to issue certificates of immunity from the collection of omitted taxes for 1926 to 1930 inclusive, upon condition that the taxpayer fully comply with the personal property tax law in 1932, for the reason that such immunity provisions conferred special benefits upon delinquent taxpayers.
"Relator further alleges and avers that the defendants, John A. Zangerle, as county auditor, and John J. Boyle, as county treasurer, had notice of the aforesaid decision; that by virtue thereof, the legal impediments raised by the immunity provisions of the Intangible Tax Act of 1931 against investigation, assessment and collection of additional personal property taxes, interest and penalties for the taxable years 1926 to 1930, have been removed; that nine months have elapsed since said decision was rendered without any action being taken by said defendants toward investigation, assessment and collection of said taxes for the years 1926 to 1930, notwithstanding the duty so to do imposed upon said defendants by Section 5398 of the General Code.
"Relator further alleges and avers that the 1932 and 1933 personal property tax returns filed by the aforesaid decedents and estates contain data and information which would be valuable and useful in determining such persons' personal property tax liability for the years 1926 to 1930 inclusive; that pursuant to the provisions of the Ohio General Code, Section 5393, permitting the destruction of tax returns and assessment lists after five years, the defendants are about to destroy the returns of personal property and assessment certificates for the taxable years 1932 and 1933.
"Relator further alleges and avers that under date of February 14 and March 10, 1938, it made a written request upon Frank Cullitan, prosecuting attorney of Cuyahoga county, Ohio, to institute mandamus proceedings against the defendants, John A. Zangerle, as auditor of Cuyahoga county, Ohio, and John J. Boyle, as treasurer of Cuyahoga county, Ohio, requiring them to investigate, assess and collect additional personal property taxes, interest and penalties for the years 1926 to 1930 from the estates listed herein, and that such requests were refused in writing.
"Relator further alleges and avers that it has no adequate remedy at law.
"Wherefore, relator prays that an alternative writ of mandamus issue, compelling said defendants, John A. Zangerle and John J. Boyle, as auditor and treasurer of Cuyahoga county, Ohio, to forthwith proceed to investigate, assess and collect additional personal property taxes, interest and penalties due or found to be due from the estates listed herein, for the taxable years 1926 to 1930, inclusive, as provided by statutes, or show cause at the time to be specified by the court in said writ why they have not done so, and that upon final hearing hereof, a peremptory writ of mandamus be awarded to the same end and object, and that relator further have his costs and reasonable attorneys' fees.
"Pending the determination of this cause, relator further prays that a temporary restraining order be granted prohibiting said defendants, John A. Zangerle, and John J. Boyle, from destroying, pursuant to the provisions of General Code, Section 5393, the personal property tax returns and assessment lists for the years 1932 and 1933, relating to the decedents of estates listed herein."
The appellees filed separate answers averring facts to show their willingness to perform all duties imposed upon them by law with reference to omitted property. To these answers appellant filed a reply which is in effect a general denial.
The Court of Appeals granted a motion of the appellees for a judgment in their favor on the pleadings and dismissed the petition. Thereupon the relator took an appeal to this court as a matter of right.
Messrs. Klein Diehm and Mr. Edward J. Brunenkant, for appellant.
Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Saul S. Danaceau, for appellees.
The motion of appellees for a judgment in their favor on the pleadings raises the question of the sufficiency of the petition. If the petition does not state facts sufficient to constitute a cause of action then the Court of Appeals did not err in granting appellees' motion and the judgment in their favor must be affirmed.
The specific claim of appellant is that in nine separate estates now in process of administration the decedents filed incorrect personal property tax returns for the years 1926 to 1930, inclusive, in that certain taxable personal property was not included therein and that, since that part of the Intangible Tax Act enacted in 1931, which provided for the issuance of certificates of immunity for those years, was held unconstitutional and void in the case of State, ex rel. Hostetter, v. Hunt et al., Exrs., 132 Ohio St. 568, 9 N.E.2d 676, the county auditor has failed in his duty to place the omitted property upon the duplicate for taxation for the years specified.
It is a recognized rule of construction that "a statute may be invalid in part, by reason of some provision being repugnant to the Constitution, and valid as to the residue, where it appears that the invalid part is an independent provision, not in its nature and connection essential to the other parts of the statute, nor so related to the general purpose of the statute as to warrant the conclusion that the Legislature would have refused to adopt it with the invalid part stricken out." Gager, Treas., v. Prout, 48 Ohio St. 89, 108, 26 N.E. 1013.
Under this rule, the provisions of Section 5398, General Code, relating to certificates of immunity are clearly separable from the remainder of the section and the remainder is valid.
In the valid portion of Section 5398, there are these provisions:
"If a county auditor believes or has reason to believe that a person, required by the law then in force to list property or make a return thereof for taxation in any prior year or years beginning with 1926 and ending with 1931, has made a false return, or has evaded making a return, or has withheld from, or failed to include in such return any property, either tangible or intangible, required by the law in force in any such year or years to be listed for taxation, he shall call such person before him for examination, by giving notice in writing of the time and place when such examination shall be had, to the person, if living, or to his legal representative, if he be dead. * * * The auditor may examine under oath the person whose returns are being investigated. He may issue subpoenas and compel the production of books and papers and the attendance of all persons whom he thinks have knowledge of the property which was or should have been included in such returns and may examine such person on oath with regard thereto. If, upon such hearing, or examination, the auditor finds that the person so required by law to list property or to make a return thereof for taxation, has made a false return or has evaded making a return, or has withheld from or failed to include in, such return or statement any taxable property, either tangible or intangible required by law to be listed, he shall determine as nearly as practicable the true amount or value of the personal property, moneys, credits and investments which such person failed to return or upon which he should have been, but was not, taxed for the year 1926, or for any year or years subsequent thereto up to and including the year 1931.
"He shall assess the sum so omitted for any of said years at the rate of taxation belonging to such year and enter the amount accordingly on the proper tax list in his office, giving a certificate therefor to the county treasurer who shall collect it as other taxes."
This section in its prior form contained a provision fixing a limitation of five years in placing omitted taxable property on the duplicate; but at present there is no provision of limitation in force with respect to the power conferred on the auditor thereunder. The respondents seek to invoke as a bar Section 5393, General Code, which provides that returns of taxable property together with all assessment certificates shall be placed on file and carefully preserved and, five years after the taxes represented thereby have been paid or litigation concerning them has been settled, then they shall be destroyed. In our judgment this section does not operate as a limitation on the action of the auditor under Section 5398, determining whether proper return of taxable personal property has been made.
Since there is no statute fixing the time within which the auditor must perform the duties imposed by Section 5398, he is enjoined by law to put omitted taxable personal property on the duplicate for the years specified regardless of mere lapse of time.
It is settled by numerous decisions in this jurisdiction that official discretion can not be controlled by mandamus in the absence of fraud, bad faith or abuse of discretion. The authorities are collected in 25 Ohio Jurisprudence, 1003 et seq., Section 28 et seq. Yet if a public officer refuses to act in toto in a matter involving the exercise of discretion, a writ of mandamus will issue to compel him to act one way or the other as his judgment may dictate. Commrs. of Lake County v. Commrs. of Ashtabula County, 24 Ohio St. 393; State, ex rel. Barnes, v. Commrs. of Belmont County, 31 Ohio St. 451; Commrs. v. Board of Public Works, 39 Ohio St. 628; Dalton, Clerk, v. State, ex rel. Richardson, 43 Ohio St. 652, 3 N.E. 685; State, ex rel. Gilder, v. Industrial Commission, 100 Ohio St. 500, 127 N.E. 595; State, ex rel. Masters, v. Beamer et al., Bd. of Edn. of Carroll County, 109 Ohio St. 133, 141 N.E. 851.
In placing on the duplicate omitted taxable personal property and determining the amount or value thereof, the auditor acts as a ministerial officer; but in doing so he does exercise discretion in some measure. There is a distinction between the nature of the office held and the duties which it imposes. An office may be ministerial as distinguished from judicial and yet duties imposed upon the ministerial officer may be discretionary. State, ex rel. Morgenthaler, v. Crites, Aud., 48 Ohio St. 142, 26 N.E. 1052; Musser, Aud., v. Adair, 55 Ohio St. 466, 45 N.E. 903.
In the case of State, ex rel., v. Crites, Aud., supra, the court had under consideration Section 2782, Revised Statutes, which provided:
"The county auditor, if he shall have reason to believe, or be informed that any person * * * has omitted or made an erroneous return of any property, moneys, or credits, * * * which are by law subject to taxation, shall proceed, * * * 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 * * *, and examine such person or persons, on oath, in relation to such * * * return * * *."
This court in that case held that the relator was entitled to a writ of mandamus to compel the auditor to proceed and act in the matter of omitted taxes. The third paragraph of the syllabus reads: "It is the duty of a county auditor to act under Sections 2781 and 2782, Revised Statutes, whenever he is 'informed or has reason to believe' that property has been improperly omitted from the tax duplicate of the county. If he declines to act upon reasonable information, a petition in mandamus, by a relator who seeks to compel him to act, is sufficient, if it state facts showing that there was reason to believe that property had been improperly omitted from the tax duplicate."
In view of the similarity between Section 2782, Revised Statutes, and Section 5398, General Code, that pronouncement controls the disposition of the case at bar; therefore it remains to consider only the sufficiency of the petition herein.
The relator alleges in the petition that the appellee, auditor, had under consideration and investigation a number of persons and estates that had failed to file returns or had filed false returns or had withheld or failed to include taxable personal property for the years 1926 to 1930 inclusive but his investigation was stayed by the statutory provision for the issuance of certificates of immunity. The relator then avers that the estates of the nine named decedents were the owners of substantial amounts of personal property and that the decedents had filed incorrect returns for the years 1926 to 1931. The relator then alleges that nine months have elapsed since the decision of the case of State, ex rel. Hostetter, v. Hunt et al., Exrs., supra, without any action being taken toward investigation, assessment and collection of "said taxes" for the years 1926 to 1930.
There is no allegation to show that demand was ever made upon the appellee auditor to investigate any of the nine estates with regard to omitted taxes or that the auditor ever declined, expressly or impliedly, to investigate these estates. The petition, however, does allege that written requests were made upon the prosecuting attorney of Cuyahoga county to institute mandamus proceedings against the appellees requiring them to investigate, assess and collect additional personal property taxes from such estates for the years 1926 to 1930 but that such request was refused in writing. The petition, moreover, does not contain allegations to show that knowledge was brought home to the appellee auditor (or even to the appellee treasurer) which could create a belief or reason to believe on the part of either of them that property of such estates had been improperly omitted from the decedents' tax returns. It is therefore evident that the petition lacks essential averments and is subject to general demurrer.
As to the appellee treasurer the petition does not state a cause of action for the reason that no duty rests upon him until the taxes are charged upon the duplicate by the county auditor.
In view of the position taken it will not be necessary to consider the other questions made by counsel.
Since the petition did not state facts sufficient to constitute a cause of action, the Court of Appeals did not err in sustaining the motion of appellees for judgment in their favor on the pleadings. The judgment will therefore be affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, MYERS and HART, JJ., concur.