
    No. 84
    TOLEDO & IND. R. CO. v. BROWN, Secretary of State
    Ohio Appeals, 4th Dist., Franklin County
    No. 1098.
    Decided Nov. 16, 1923
    313. CORPORATIONS — Corporate charter may be canceled for failure to file return.
    1159. TAXES — The lesser of two penalties assessed by the state against a corporation for failure to pay certain taxes though penalty was not prejudicial.
    Attorneys — Ralph H. Harburger, and Trace, Chapman & Welles, for Railroad Co.; C. C. Crabbe and William J. Meyei’, for Brown.
   ALREAD, J.

This was an action for injunction brought' by the Toledo & Indiana R. R. Co. against Brown, Secretary of State of Ohio. The plaintiff asked for a permanent injunction restraining the Secretary of State from cancelling its articles of incorporation because of its failure to pay its annual gross profit tax on or before December 15, 1922. The power court sustained a demurrer to the petition. The petition alleged the assessment of a penalty, that the tax was not assessed or determined prior to Dec. 15, 1922, and that no bill was sent to the corporation by the treasurer, that a tender of the amount due less the penalty was made and refused, and that no bill was ever sent to the plaintiff showing the amount due prior to Dec. 15, 1922. In sustaining the judgment of the Common Pleas Court, the Court of Appeals held:

1. Under GC. 5470 the duty is placed upon the taxpayer to make out and file with the commission a statement on a form provided by the commission, and as there was no allegation in the petition that the commission had not prescribed the form upon which said return should be made, nor that the plaintiff had filed or offered to file a statement as required by law on or before Sept. 1, 1922, or at any time prior to- Jan. 23, 1923, it m¡ust be assumed that the plaintiff was in default for the filing of such a statement and therefore the petition failed to state a cause of action.

2. Under GC. 5507 the penalty would be larger than the penalty actually assessed, and the state having elected to choose the smaller penalty, the defendant corporation was not prejudiced thereby.  