Page images

Hamilton Common Pleas.


is the limitation upon the auditor. Here the error is clearly not clerical. The Commissioners are vested with no authority; but relief is given under Rev. Stat., sec. 2804, by complaint to the Board of Equalization.

Rev. Stat., sec. 2872, confers power upon the auditor to add to tax list, real property omitted by the decennial district assessor, and here again the assessor fixes the value, and the auditor is authorized to do this only in case of his neglector's inability. The omission is here a fundamental error.

Rev. Stat., sec. 2803 (78 O. L., 47), provides for cases of omissions of the property in assessor's returns, or escapes from taxation by the auditor's errors. But he is required to ascertain the value thereof, thus necessarily implying that the property was such as had not previously been valued for taxation. From this catagory is therefore excluded property which is found entered on any of the duplicates and returns, because these had already been subjected to valuation and are not within the purview of that section.

Rev. Stat., sec. 2753 requires the assessor to list and value property omitted by decennial and previous appraisers, and to correct mistakes as to values of improvements by previous assessors, upon proper notice to property-owners.

These sections under review are calculated to provide for all the probable cases of omissions or corrections under the tax system. They relate either to such property as have been wholly omitted from the tax list and duplicate by every assessor and auditor, or to such as have been entered thereon but required correction: first, as to valuation by reason of their report in assessors' returns, or by order of Board of Equalization or State Auditor, and second, by reason of errors in making charges er entries in the duplicate. The corrections are here classified into those which are made from the face of the records, that is, clerical, and those which are made and directed from other sources of information. The jurisdiction conferred upon the County Commissioners in the cases of the first description, argues that they are clerical in character, since, were it otherwise it would be conferring upon that body in matters of violation a power to review and reverse the decision of other officers-a result in conflict with the theory and scheme of tax laws and systems of the state.

In this case the error complained of was one regarding the valuation of the property. There is no record, either return of assessor, minutes of Board of Equalization or tax duplicate, which directs a deduction for the old structure. It was not embraced in any of the particulars men. tirned in sec. 1038, and was on that account not clerical in its nature. Neither the auditor nor the Board of Commissioners was empowered by statute to grant the relief sought; and consequently the action of the Com nissioners was according to law. On this appeal the jurisdiction of the court as to the subject matter, can not exceed that of theCommis. sioners. The petition is dismissed.

Jordan & Jordans, for plaintiffs.
Davidson & Hertenstein, for defendants.

Tenhundfeld v. Hamilton County Commissioners.





(Hamilton Common Pleas.) JOSEPH TENHUNDPELD V. HAMILTON Co. (COM'RS.) Where a retunder for three years is asked on the ground that by a mistake in

reading the assessor's return of the value of a new structure it was placed on the duplicate at a valuation greater than the assessor returned, the county commissioner's should allow the refunder, and cannot refuse it on the ground that they think the valuation grossly inadequate, for they have no power to review the action of other officers in fixing valuations, but can only correct

clerical errors. SHRODER, J.

This is an appeal from the rejection by the County Commissioners of the plaintiff's claim for refunder of taxes for 1884, 1885, 1886. The transcript of the Commissioners' records states that the claim rejected "for the reason that the valuation seems to be grossly inadequate, and from a personal examinaton of the property it would seem that the applicant is not entitled to a refunder as prayed for."

The only authority vested in the County Commissioners to order refunder of taxes is found in sec. 1038 Rev. Siat. . This section confers upon the Commissioners a jurisdiction in refunder claims which is as limited as that given to the auditor, and is confined to clerical errors. The power and duty of fixing and passing upon valuations for tax purposes are under the tax laws and system of this state, to be exercised by the special agencies created by the statutes for such purposes: Such as assessors, auditors of county and state, board of equalization and of revision, and the like. The course taken by the Commissioners as declared in the transcript, was an undertaking to review and reverse the judgment of the assessor and board of equalization, upon the valuation; and as this was without any sanction of law it cannot be sustained.

It appears that for 1883 the assessor returned plaintiff's unfinished structure at a value of $1,200 to which the cicy board of equalization for that year added $400. For 1884 the assessor returned the finished structure as follows: "total value $2,600, partial value reported last year to be deducted $1,200; amount to be added to the duplicate for the structure $1,400 finished.”'

The minutes of the board of equalization read: Assėssor returned $2,600-add $400 finished.” From this minute it was for the auditor to perform the clerical duty of entering the conclusion of the board on the duplicate. This conclusion was to add $400 to the assessor's return, and a reference to the return filed and kept in the auditor's office according to law, would directly indicate that $1,200 was to be deducted. The failure to make this reduction was not the result of the exercise of judgment, or of the investigation of facts, but was due to faulty examination of the records, from which the auditor was to make his entries in the duplicate. It could be said of this case: "No fact is to be inquired into. Every necessary fact appears on the face of the return." Ins. Co. v. Cappellar, 38 Ohio St., 574. It was clerical work only. To the extent of $1,200.00, it was an erroneous charge on the duplicate for 1884. 1885. 1886.

The Commissioners' jurisdiction under Rev. Stat., sec. 1038 was limited to the inquiry as to such erroneous clerical charges; Comrs. v. Eckstein, 6 Dec. Re., 843; Ridderman v. Comrs., ib. 939; Ives v. Comrs., Ib. 1079; and the inquiry of the

L B 33


[blocks in formation]

court on this appeal is subject to the same limitation. From the evidence the plaintiff is entitled to a refunding of the taxes as claimed.

Judgment is therefore for plaintiff.
0. J. Cosgrave, for plaintiff.
Davidson & Hertenstein, for defendants.

[blocks in formation]

(Hamilton Common Pleas, 1889.)
Error in Assessment--

Jurisdiction of County Commissioners.

This appeal filed December 31, 1888, was from the Commissioner's rejection of the plaintiff's refunder claim, of taxes paid since December, 1885, upon the valuation of $1,940.00, which before that year had been fixed upon an old structure which was destroyed and replaced that year by a new one. The new one was valued by the assessor and board of equalization at $8,000. Plaintifit claims that no deduction was made for valuation of the destroyed structure.

Under the rulings in Chatfield & Woods case, ante 512, this claim not being founded upon a clerical error, was properly rejected by the commissioners.

Petition is dismissed.
G. S. Baily, for plaintiff.
Davidson & Hertenstein, for defendant.

[blocks in formation]

(Hamilton Common Pleas, 1889.)

H. A. TATEM V. HAMILTON Co. (COM'Rs.) When the auditor of state orders a reduction in the valuation of lots for gross in

equality after the legal settlement of the duplicate, the county commissioners have no power to order a refunder for the previous year, for the error is fun

damental, not clerical. SHRODER, J.

This appeal filed December 31, 1888, from the rejection of plaintiff's claim for a refunder of taxes paid in 1886, upon lots in Baker's subdivision. It appears that the valuation on these lots was reduced by order of the state auditor for gross inequality. This was done in September, 1887, and after the legal settlement of the duplicate of 1886. The claim for refunder is based upon an erroneous valuation, which is a fundamental but not a clerical error, The commissioners had no jurisdiction and their action was therefore correct. The ruling in the Chatfield & Woods case governs this claim.

Petition is dismissed.
Davidson & Hertenstein, for defendant.


Derby v. Hamilton County Commissioners.



(Hamilton Common Pleas, 1889.)

H. W. DERBY V. HAMILTON Co. (Com'rs.) Error in Assessment-Jurisdiction of County Commissioners. SHRODER, J.

This appeal was filed January 2, 1889, from the rejection by the commissioners of plaintiff's claim for the refunding of taxes paid by him for 1887 upon the valuation of $5,170, being the valuation of old structures destroyed and replaced by a new building (the present temporary city building) on the Fourth street near Central avenue. He claims that the assessor and board of equalization valued the latter at $10,000 for taxation, but made no allowance and deduction for the destroyed structure.

This claim presented no clerical error, and was therefore not a subject within the jurisdiction of the commissioners and was properly rejected. Under the ruling in the Chatfield & Woods case, ante 512, the petition is dismissed.

Boyce & Boyd, for plaintiff.
Davidson & Hertenstein, for defendant.

[blocks in formation]

(Hamilton Common Pleas, 1889.)

HENRY WAGNER V. JOHN ZUMSTEIN, TREAS. Where an assessor valued a partially finished structure at its then value, and sub

sequent assessors never added any amount for the completed building, the auditor's act in entering charges for delinquent taxes for the years since for the value of the completed building, is proper and will not be enjoined on the claim that the subsequent assessors added nothing because they intended to equalize the value of the whole property, which had depreciated from floods. The assessor had no such power, and, moreover, his official acts are to be em

bodied in his return and nowhere else. SHRODER, J.

This action is for an injunction against the treasurer's collecting taxes charged upon the 1888 duplicate upon plaintiff's real property on west side of Biddle street. The auditor added $2,500 for new structure on the land, begun in 1883 before April, and finished in July; and also entered charges for delinquent taxes for 1884, 1885, 1886 and 1887. Prior to 1883 the property was on the duplicate at $6,260. The assessor of 1883 in his returns on or before the third Monday of May, added $1,500 for new structure as of that time. No return for the structure as finished (in July, 1883), was made in 1884 or thereafter. The auditor in 1888 upon discovery of the omission, and after notice to plaintiff, ascertained the value of the new structure to be $4,000, and making allowance for the $1,500 theretofore added, made the entries complained of. If the 1884 assessor omitted to return this structure as finished, the sec. 2803, Rev. Stat., required the auditor to do what is here objected to by plaintiff This structure as finished became subject to taxation for the first

[blocks in formation]

time in July, 1883, and could not be returned before the assessor's return io 1884. And that year's assessor and subsequent assessors omitted to make any return of same for taxation. Plaintiff claims that the assessor of 1884 noted the finished structure, at the same time declaring that he would make no addition beyond the $1,500, intending thereby to allow and equalize the value of the whole property, whose value had depreciated by reason of the foods of that year. Various provisions of the statutes (sections 1029, 1528, 2749, 2753, 2755, 2803), relative to assessors and their duties, determine the form in which the assessor's listing and valuation is to be made, and what is to constitute the evidence of his decision. His official acts are by virtue of these sections embodied in his return only, and in no other document. And sanction for his assuming to equalize the value of this property by setting off the additional value of new structure against the depreciated value of his whole real property cannot be found anywhere in the statutes. Consequently the plaintiff's claims are clearly untenable. The auditor's action was lawful, and constituted a lawful warrant to the treasurer to collect the taxes charged. The petition is dismissed.

Von Seggern, Phares & DeWald, for plaintiff.
Davidson & Hertenstein, for detendant.


(Hamilton Common Pleas, 1889.) WILLIAM GIBSON V. JOHN ZUMSTEIN, TREAS., ET AL. The power of the auditor to add for an additional structure not returned by the

assessor is not barred by the board of equalization having acted on the prop erty before the completion of the new structure, for their authority is over those returned for the current year, and therefore they, presumably, did not

decide on this structure. SHRODER, J.

This action was brought for an injunction to restrain the Auditor from placing an addition of $40,000 on the 1888 tax duplicate, and the Treasurer from collecting charges on the same on the 1887 duplicate, for taxation, for new structures on plaintiff's lots on west side of Walnut, above Fourth street, Cincinnati. This property had been entered upon the duplicates of 1881 to 1884, inclusive, at the gross valuation of $200,260. The new structure was begun in 1885, and completed in the fall of that year. On August 17, 1885, the city Board of Equalization deducted $18,000 from the valuation, reducing it to $182,260 upon the duplicates of 1885, 1886 and 1887. In 1887 the Auditor discovered the omission on the part of the assessor for 1886, to return this new structure as required by Rev. Stat., secs. 2753, 2730. After notice to plaintiff, the Auditor proceeded to ascertain and make a valuation of it, and accordingly entered it as an addition to the 1887 duplicate in the sum of $40,000, placing the additional tax charge of $553.60 for December, 1887, of $553.60 for June, 1888, and of $1.047.60 for delinquent taxes thereou for 1886.

The Auditor's action was in discharge of his duty under the act of March 11, 1881 (78 Ohio L., 47), unless the proceedings of the board of equalization on August 17, 1885, interposed a bar to his power in the matter. To have this effect, they must have been taken upon the new

« PreviousContinue »