
    TAXATION.
    [Cuyahoga (8th) Circuit Court,
    December 1, 1905.]
    Marvin, Winch and Henry, JJ.
    State ex rel. J. A. Smith, Tr. v. Robert Wright, Aud.
    Taxation — Ownek of Destroyed Building may Compel Auditor to Remove same-from Duplicate.
    An owner of a building which he himself has torn down is entitled, under Rev. Stat. 1038a (Lan. 2379), to have the county auditor deduct from-the tax duplicate the value of such building at any time between the-second day of April and the first day of October as provided in the statute. This statute does not violate the provisions of Sec. 2, Art. 12 Const., as to uniformity of rates of taxation.
    [Syllabus approved by the court.]
    MANDAMUS.
    Smith, Taft & Arter, for plaintiff.
    C. W. Stage, Z. T. Armstrong and J. L. Cannon, for defendant.
   MARVIN, J.

(Orally.)

This is a proceeding in mandamus brought by Smith, praying that a writ issue from this court commanding and directing the auditor to deduct from a certain tax list a. valuation of a certain building which was destroyed after April 2, 1905.

The petition sets out all the facts necessary to entitle the plaintiff to this reduction of the tax duplicate as provided in Rev. Stat. 1038a (Lan. 2379), if that statute is to govern. The statute, is,

“The county auditor shall, whenever a-fter the second Monday in April, and before the first day of October in any year, it is made to appear by the oath of the owner, or one of the owners of any building or structure, and by the affidavit of two disinterested persons, resident of the city or township in which such building or structure is, or was, situate, that such building or structure has been injured or destroyed by fire, flood, tornado or otherwise, since the second Monday in April of the current year, deduct from the tax list and duplicate, the value of such buildings or structures, or such part of the value thereof as shall correspond to the extent of such injury.”

Here the destruction was done by the relator. He tore down and destroyed a building on certain premises between the second Monday in April and the first day in October. The taxes on such building amounted to $135.68. It is said that the statute hereinbefore quoted is in violation of Sec. 2, Art. 12 of the constitution of Ohio, which provides that,

“Laws shall be passed, taxing by a. uniform rule, all * * * real and personal property according to its true value in money.”

It is urged that to permit one to have a deduction by reason of the destruction of the property and covering • this period of time from the second Monday in April to the first day of October is to grant a special privilege to one who, during that entire six months, may have had the benefit and the income from such building, and it is said that the fixing of the dates is arbitrary, but Rev. Stat. 2838 (Lan. 4298) fixes the date of the lien for taxes as the second Monday in April.

Revised Statutes 1042 (Lan. 2383) fixes the time for the delivering of the tax duplicates by the auditor to th^ treasurer as the first day of October, so that the dates fixed in this statute are fixed evidently because of the time when the lien attaches and the time when the duplicate is co be delivered to the treasurer.

Similar provisions are made as to the deduction by the board of equalization of destroyed personal property, by Rev. Stat. 2807 (Lan. 4214).

Notwithstanding this provision of the constitution and the provision of the statute, Rev. Stat. 2731 (Lan. 4034) that, “All property whether real or personal in this state, and whether belonging to individuals or corporations; and'all moneys, credits, investments in bonds, stocks, or otherwise,” etc., “shall be entered on the list of taxable property as-prescribed in this title,” and provides for the taxation of such property except that which may be specifically exempted, ■exemption laws in reference to taxation have been recognized in ■Ohio ever since the adoption of the present constitution, and long before, and yet the provision of the constitution is that,

“Laws shall be passed taxing by a uniform rule, all * * * real .and personal property according to its true value in money.”

It is manifest that the policy of this state has been to allow certain property to be exempted.

In the ease of Chisholm v. Shields, 67 Ohio St. 374 [66 N. E. Rep. 93], it was held that a provision by which the widow of Chisholm was to have a large income during the period of her life from the time of his death (a provision by will) that there could be no taxing of that income notwithstanding that it was a very valuable thing.

Cooley, Taxation 1378, under the head “Abatement of Taxes,” speaks of the fact that certain property is exempt from taxation without violating the spirit of .the constitution, which provides that all property shall be taxed.

Is this statute unreasonable? It would sometimes relieve one from paying taxes on property from which he has had an income during a part of the year; though notwithstanding that, it is not to us so unreasonable as would justify us, in the absence of the holding of any higher court, or any court as far as we know, that the statute is either unreasonable or ambiguous. ¥e do not find it is either. We hold, therefore, that the prayer of the petition should be granted. Judgment will be entered accordingly.

Winch and Henry, JJ., concur.  