69 N.E.2d 228 | Ohio Ct. App. | 1946
This is an action in mandamus, originating in this court, brought by the state of Ohio on the relation of William A. Williams, a citizen, resident and taxpayer of the state of Ohio.
The respondent is C. Emory Glander, the duly appointed, qualified and acting Tax Commissioner of the state of Ohio.
The relator prays that a writ of mandamus be issued commanding the respondent to levy and assess personal property taxes on the inventory of merchandise and other personal property owned and held by the Department of Liquor Control of the state of Ohio, which personal property is within the state of Ohio, and prays for such other and further relief as the relator may be entitled to.
The respondent demurs to the petition for the reason that it fails to show a cause of action. The respondent *528 in his brief in support of his demurrer asserts that by reason of the fact that mandamus is an extraordinary writ it will not lie unless the relator can establish a clear legal right thereto.
In State, ex rel. Stanley, v. Cook, Supt. of Banks,
"A writ of mandamus will not issue to compel the observance of law generally, but will be confined to commanding the performance of specific acts specially enjoined by law to be performed. * * *"
Relator herein is not seeking the observance of laws generally but is seeking the performance of specific acts specially enjoined to be performed.
Respondent contends also that there is no showing that the relator has an essential beneficial interest in the relief sought. Section 12287, General Code, provides that the writ may issue on the information of the party beneficially interested. In regard to the degree of interest on the part of the relator necessary to make him a proper party on whose information the proceedings may be instituted, a distinction is made between cases where the extraordinary writ of mandamus is invoked merely for the purpose of enforcing or protecting a private right and those where the purpose of the writ is the enforcement of a purely public right where a people at large is the real party in interest. State, ex rel., v. Henderson,
The next question for our consideration is whether the other averments in the petition state a cause of action. The relator seeks to have the respondent compelled to make personal property tax assessments against the Department of Liquor Control of the state of Ohio. He is seeking to have the state tax itself.
Taxpayers are defined in Section 5366, General Code. They include, so far as might possibly be favorable to the relator, "every person * * * doing business in this state." The term "person" is defined in Section 5320, General Code, as follows:
"The word `person' as used in this title, includes firms, companies, associations and corporations; words in the singular number include the plural number, and words in the plural number include the singular number; and words in the masculine gender include the feminine and neuter genders."
The state of Ohio is not a firm, a company, an association or a corporation. It is a sovereignty. The doctrine seems to be that a sovereign state, which can make and unmake laws, in prescribing general laws, generally intends thereby to regulate not its own conduct but that of its subjects. State, ex rel. Parrott, v.Board of Public Works,
In 37 Ohio Jurisprudence, 804, Section 479, we find the following:
"Accordingly, the state is not bound by the terms of a general statute unless it is so expressly enacted, particularly where it is attempted to enforce a direct liability against the state, or where any of the prerogatives, rights, titles, or interests of the state are sought to be devested. This exemption, however, has been declared not to include municipal corporations, or other parties *530 of a public character other than the state. Moreover, the state may, by express provision, be brought within the terms of a statute."
The statutes nowhere provide that the state of Ohio is expressly included as being subject to assessment. It is well settled that statutes imposing taxes are to be strictly construed in favor of the party upon whom the tax is sought to be imposed and are not to be extended by implication beyond their clear import. Cassidy v. Ellerhorst,
For the foregoing reasons we are of the opinion that the petition of the relator fails to state a cause of action.
The demurrer is sustained, and unless the relator desires to plead further, the petition will be dismissed and the issuance of a peremptory writ denied.
Judgment accordingly.
HORNBECK, P.J., and WISEMAN, J., concur. *531
