
    The State, ex rel. Gries, v. Ach et al., Board of Commissioners of Hamilton County.
    (Decided June 13, 1932.)
    
      Mr. Carl F. Pieper, for relator.
    
      Mr. Robert N. Gorman, prosecuting attorney, and Mr. Jaclc B. Josselson, for respondents.
   Hamilton, J.

This is an original action in mandamus. The petition for the writ alleges an erroneous charge for taxes assessed against the plaintiff’s property in the years 1926, 1927, 1928, 1929 and 1930.

It is alleged that the errors were mathematical errors in computation; that after repeated requests the auditor sent written notice, as required by law, to the defendants, the county commissioners of Hamilton county, admitting the errors in calculation. The notice further states:

“In my further investigation, I found that an error had been made in the calculation of the building value; the value of Mr. dries ’ house being figured on a basis of 1296 square feet instead of 936 square feet, as it should have been. It was purely a mathematical error since the dimensions of the building are 26x36 feet, or 936 square feet of area.”

The notice further states:

“These are all the facts concerning this matter which are herewith being submitted to your honorable board for further consideration.”

It is alleged that on May 17, 1932, the said board of county commissioners, at a meeting held at the courthouse, refused to order said auditor to draw a warrant on the county treasurer of Hamilton county, in favor of the relator, reimbursing him for taxes and assessments so erroneously charged and collected.

He prays that a writ of mandamus issue compelling the county commissioners to order the auditor of Hamilton county to draw his warrant on the county treasurer, in favor of him and Mary dries, for the full amount of taxes or assessments so erroneously charged and collected.

To this petition, respondents demurred, on the ground that the petition does not state facts sufficient to constitute a cause of action.

Section 2589, General Code, provides in part:

“If at any time the auditor discovers that erroneous taxes or assessments have been charged and collected in previous years, he shall call the attention of the county commissioners thereto at a regular or special session of the board. If the commissioners find that taxes or assessments have been so erroneously charged and collected, they shall order the auditor to draw his warrant on the county treasurer in favor of the person paying them for the full amount of the taxes or assessments so erroneously charged and collected.”

There is no allegation in the petition that the respondents found that the taxes or assessments had been erroneously charged and collected. The basis of the relator’s claim is that the respondents refuse to order the auditor to draw a warrant on the county treasurer. If the county commissioners have found the taxes to be erroneously charged and collected, and failed to make the order, the writ would lie, and the petition would be sufficient as against the demurrer. In the absence of an allegation that the commissioners have so found, there is no cause of action alleged, since the commissioners would have no power to order the warrant drawn, unless and until they found the taxes had been assessed erroneously.

If the county commissioners had found against the relator as to the errors in-the collection of the taxes, the relief of the party assessed could be found under the provisions of Section 2461, General Code, which, in part, reads:

“A person aggrieved by the decision of the county commissioners in any case, may appeal within fifteen days thereafter, to the next court of common pleas, notifying the commissioners of such appeal at least ten days before the time of trial.”

There being no allegation in the petition that the county commissioners had found in favor of the relator, our conclusion is that the petition does not state facts sufficient to constitute a cause of action entitling relator to the relief prayed for.

The writ is refused.

Writ refused.

Ross, P. J., and Cushing, J., concur.  