Summary
In State ex rel. Bassichis v. Zangerle (1933), 126 Ohio St. 118, the Supreme Court of Ohio held: "Failure of a relator to avail himself of his legal remedy, within the period limited by the statute providing such remedy, does not confer upon the right to extraordinary remedy of mandamus.
Summary of this case from State ex rel Neguse v. CrawfordOpinion
No. 23692
Decided January 25, 1933.
Mandamus — Writ not available where law remedy adequate — Right to writ not conferred by failure to pursue legal remedy within limitation — Refund of taxes paid after buildings removed front land.
1. Mandamus, being an extraordinary writ, is not available where there is a plain and adequate remedy in the ordinary course of law.
2. Failure of a relator to avail himself of his legal remedy, within the period limited by the statute providing such remedy, does not confer upon him the right to the extraordinary remedy of mandamus.
ERROR to the Court of Appeals of Cuyahoga county.
This is an action in mandamus. It was instituted in the Court of Appeals of Cuyahoga county, where the relators sought a writ requiring the county commissioners of that county to order the county auditor to draw a warrant on the county treasurer for the refunding of taxes for a period of five years prior to the time of filing the petition. Issue was made by demurrer to the petition.
The admitted facts giving rise to the legal question are substantially as follows: The plaintiffs were the owners of certain parcels of land listed for taxation in their names, and also the owners of certain ninety-nine year leases which required them to pay the taxes. Each of these parcels had thereon certain old buildings which were demolished and removed at various times during the years from 1919 to 1926. New buildings were erected on such parcels, the tax value of which was assessed by the county auditor, but that official erroneously omitted to deduct the tax value of the old buildings removed, which taxes were paid by the plaintiffs without discovering that they were paying taxes on such old buildings until April, 1931, at which time they called the attention of the county auditor to that situation and requested a refund of the taxes so paid, which was refused, and the county commissioners have failed and refused to direct the county auditor to draw his warrant in favor of the plaintiffs for the amount of the taxes so erroneously charged and collected during said period of five years.
The Court of Appeals sustained the demurrer and dismissed the petition, whereupon a petition in error seeking a reversal of that judgment was filed in this court.
Mr. Abraham Kollin, for plaintiffs in error.
Mr. P.L.A. Lieghley and Mr. Emerich B. Freed, prosecuting attorneys, and Mr. Neil W. McGill, for defendants in error.
It is contended that the county auditor failed to discharge a duty incumbent upon him, to wit, the deduction of the tax value of the old buildings removed, and that it was by reason of that nonperformance of duty upon the part of the auditor that the relators continued to pay taxes on those old buildings after they had been removed. The situation of which they complain did not result from any mere error in calculation or otherwise, but from a breach of duty on the part of the auditor, being a failure to do an act required of him by law, which, if an error of the county auditor, is fundamental in character.
However no duty was imposed upon the county auditor to make any change in the duplicate required by changes in the physical condition of the property unless and until such change in the physical condition thereof was brought to his attention. The taxes which the relators now seek to recover were voluntarily paid. Relators may not keep on paying taxes without protest and without question, and then recover the taxes thus voluntarily paid on the ground that they were ignorant of the facts relative to the failure of the county auditor to make deductions for property removed. The facts relative to the removal of the buildings were within their knowledge, and they knew, or could have readily ascertained, that no deductions had been made from the taxes on the duplicate by reason of the removal of such buildings. Furthermore the provisions of Section 2591, General Code, make it the duty of the owner of such property to bring to the attention of the county auditor the facts which he claims require deduction from the tax duplicate.
The decision of this case could well rest upon a long-established and frequently applied rule recently restated and followed in State, ex rel. Pulskamp, v. Board of County Commrs. of Mercer County, 119 Ohio St. 504, 164 N.E. 755. The issuance of a writ of mandamus would not be warranted by the facts pleaded. Mandamus, being an extraordinary remedy, is not available where there is a plain and adequate remedy in the ordinary course of law. State, ex rel. Tax Commission, v. Mills, Aud., 103 Ohio St. 172, 132 N.E. 727. Section 5624-10, General Code, provides a method of procuring the remission of taxes illegally assessed in consequence of the negligence or error of an officer in the performance of his duty, and Section 12075, General Code, provides a method for the recovery of taxes illegally collected. It is provided in this section that there can be no recovery unless action be brought within one year after the taxes were collected. The failure to avail himself of his legal remedy within the period limited by the statute providing such remedy does not confer upon the taxpayer the right to the extraordinary remedy of mandamus.
Judgment affirmed.
WEYGANDT, C.J., DAY, ALLEN, STEPHENSON and JONES, JJ., concur.
KINKADE, J., not participating.