Opinion
No. 37936
Decided March 15, 1963.
Taxation — Enforcement of laws, and orders of Board of Tax Appeals — Section 5703.39, Revised Code — Writ of mandamus not available, when — Enforcement of recommendations of Board of Tax Appeals investigator.
1. For a writ of mandamus to issue under the provisions of Section 5703.39, Revised Code, to enforce an order, a valid order must exist enjoining the performance of specific duties upon the officer to whom such order is directed.
2. The report of an investigator of the Board of Tax Appeals is advisory only, and a writ of mandamus does not lie to enforce the performance of recommendations made therein.
IN MANDAMUS.
This is an action in mandamus instituted in this court by the relator, Board of Tax Appeals, against the respondents, County Commissioners, County Budget Commission and the County Auditor of Morgan County, and involving the county budget for 1963.
This action arose by reason of a difference of opinion between the Ohio Power Company, a substantial taxpayer in Morgan County, and the respondents as to the allocation of certain tax revenue, disbursements and tax levies in the proposed budget.
On October 9, 1962, the Ohio Power Company filed a petition with the relator asking for an investigation of the proposed 1963 county budget and the management of the fiscal affairs of the county.
A hearing was held by relator on October 30, 1962. Among other actions taken, Edwin Ducey, Chief of the Division of County Affairs of the Board of Tax Appeals, was directed to make an investigation of the complaint of the Ohio Power Company and to prepare and file with the relator a written report thereof. This was done. (Relator's petition appendix D-1; appendix E.)
Relator's alleged "order of November 16th, 1962" (appendix E), which relator claims should be enforced by virtue of the provisions of Section 5703.39, Revised Code, is copied from Ducey's report under his caption, "The changes that are recommended, are:" (Appendix D-1, pages 7 and 8.)
These same recommendations are quoted practically verbatim in the body of relator's petition at pages 5 and 6 and are repeated in the prayer. They are as follows:
"The changes that are recommended are:
"1. That payments shown from the General Fund to the Real Estate Assessment Fund for 1962 and 1963 be deleted and the portion of the auditor's fees shown as receipts in the General Fund be adjusted accordingly.
"2. Transfer of $146,080.77 from the Courthouse Improvement Fund to the General Fund.
"3. County Road and Bridge Fund levy of .70 mills be deleted.
"4. That the receipts from general property tax of $63,700 shown in the Motor Vehicle and Gasoline Tax Fund for 1963 be deleted.
"5. That the county officials fees be adjusted for 1962 and 1963 reflecting a more realistic figure. Based on estimates made in the attached schedule on pages 4 and 5, this would amount to:
"$51,000 for 1962 "$47,100 for 1963 (This figure reflects an adjustment due to the deletion of this .70 mill levy)
"6. That balances and receipts in the General Fund on page 2 of the budget be adjusted to reflect the preceding changes. This will result in a balance of $307,422.13 as of January 1, 1963 as shown on page 1 of the attached schedule.
"7. That a levy of .30 mills be levied to cover items that are normally withheld at settlement times."
Mr. Mark McElroy and Mr. William B. Saxbe, attorneys general, Mr. John J. Lokos and Mr. Daronne R. Tate, for relator.
Mr. Donavan Lowe, prosecuting attorney, and Mr. Robert S. Christie, for respondents.
The basic issue raised by this action may be stated as follows:
Is the relator entitled under the provisions of Section 5703.39, Revised Code, to a writ of mandamus for an alleged noncompliance with an alleged order of the relator?
The petition seeks only to compel respondents to comply with an order which relator contends was made by relator to respondents on November 16, 1962.
"Mandamus is a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station." Section 2731.01, Revised Code.
In order to prevail in an action in mandamus a relator must allege and prove a clear right to the performance of definite, specific and absolute legal duties imposed upon and violated by the respondent. State, ex rel. Preston, Dir., v. Shaver, Recorder, 172 Ohio St. 111; State, ex rel. Stanley, v. Cook, Supt., 146 Ohio St. 348; and 35 Ohio Jurisprudence (2d), 254, Mandamus, Section 13.
Relator bases its right to a writ of mandamus on the provisions of Section 5703.39, Revised Code, which read as follows:
"In addition to the other remedies provided by law for the prevention and punishment of any violation of the laws which the Department of Taxation is required to administer or the orders of the department, such laws and orders may upon the application of the department be enforced by proceedings in mandamus, injunction, or other appropriate proceedings." (Emphasis ours.)
While this section creates a right to relief by way of mandamus to compel obedience of an order of the Board of Tax Appeals, Department of Taxation, it in no way affects or changes the basic requirements which are prerequisite to the issuance of the writ. In other words, relator, for relief under this section, must establish the issuance of a valid order specially enjoining a designated officer to perform specific acts based upon specific duties imposed on him by law.
No such order exists in the instant case. The only action taken by the board herein was to order the report of its investigator containing certain "recommendations" spread upon the journal pursuant to provisions of Section 5703.02, Revised Code. (Appendix H to petition.)
This report contains merely recommendations which are completely void of the characteristics of an order. Furthermore, this report, under the provisions of Section 5703.22, Revised Code, is merely "advisory," and the spreading of it upon the journal did not have the effect of making it an order of the board.
Therefore the basic issue here must be decided against relator since there is no order upon which to base the issuance of the writ.
Although not questioned by the pleadings it may be well to note that this action was instituted solely in the name of the Board of Tax Appeals. Nowhere in the petition is the "Department of Taxation" named as a party, yet all actions shall be brought in the name of the Department of Taxation. Section 5703.15, Revised Code. It is the orders of the Department of Taxation that are to be enforced under the provisions of Section 5703.39, Revised Code. The Attorney General acts upon "request of the Department of Taxation." Section 5703.23, Revised Code.
The basic issue having been resolved against the relator, it follows that the writ must be, and hereby is, denied.
Writ denied.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH and GIBSON, JJ., concur.