
    The State, ex rel. Belt, v. Mason, County Aud.
    (Decided June 23, 1933.)
    
      Mr. T. M. Potter and Mr. D. F. Trew, for relator.
    
      Mr. Dwight CusicJc, prosecuting attorney, and Mr. U. S. MoGonagle, for respondent.
   Sherick, P. J.

This is an original action in this court. Its purpose is to procure the issuance of a peremptory writ of mandamus at the instance of the relator, a taxpayer and citizen of Perry county, as against respondent, the county auditor. It is charged that the respondent has omitted and refused performance of a mandatory public duty, enjoined by statute upon him. The omission complained of and required to be done is the publication of the county’s delinquent tax list as prescribed by Section 5704, General Code, as it now stands enacted (114 Ohio Laws, 8B1).

The respondent advances several defenses, the first of which questions the capacity of the relator to maintain this action, because of the lack of averment, and proof, of the invasion or postponement of a private or personal right in the relator.

The second defense asserts the unconstitutionality of the statute, and avers that the duty prescribed thereby is directory and discretional, and not mandatory. The third defense avers a lack of county funds appropriated for the cost of any such publication, and that the requiring of the issuance of such a writ would command the auditor to do an illegal act. The fourth defense denies the relator’s good faith, and asserts' that as a publisher he hopes to profit from the publication of useless information, which the public may otherwise acquire, and that such a publication is expensive and of no benefit to the county and the public generally.

Counsel recognize that if it is determined that the duty prescribed by the statute is discretionary, the writ should not issue. This being the chief question made, and dispositive of the entire controversy, it becomes unnecessary for this court to consider the other issues presented.

The relator points out that Section 5704, General Code, was reenacted on June 24, 1931, 114 Ohio Laws, 831, and that in fact the Legislature then rewrote the entire section of the Code pertaining to delinquent taxes. And much is made of the fact that in Section 5704 appear for the first time the words “such publication shall be considered to be for the information of the public,” from which it is argued that it was the plain intent of the Legislature to fasten upon the auditor a mandatory public duty, and that the dissemination of this published information is thereby made a matter of public policy in the handling of tax collections on delinquent lands. It is further insisted that it is an inflexible rule of statutory construction that a change in the phraseology of a statute is indicative of a legislative intent to vary its subsequent effect. We are unable to follow the relator’s reasoning.

Under prior statutes dealing with tax sales of delinquent lands, which is no longer the method of their collection, it was imperative that such lists be pub-listed, for such publication constituted the only notice of any such sale. The statute now contemplates a foreclosure proceeding of which due notice is given to the taxpayer.

The thought presents itself: Is the relator right in his conclusion that publication is now for the first time required for the information of the public?' We do not think so. It was without doubt an unexpressed legislative purpose in the past to shame a delinquent taxpayer into paying his taxes by the means of having his neighbor see his name in print as a delinquent. It is therefore our conclusion that the newly injected phrase is but a visual expression of a previously considered indelicate reason and intent better not stated. We perceive situations that could arise when publication might defeat concerted action to impair the collection of an unpopular but just tax. In such case the means would justify the end, and the legislative intent be served as intended. On the other hand, we recognize that the Legislature did not intend to be inhuman and cruel. It recognized that such economic conditions as now confront the taxpayers of Perry county, that is, a present inability to pay, might arise. It has repeatedly indicated a general public policy to lighten the burdens of taxation and to reduce all useless expenditures. To contemplate a legislative intent of publication of delinquent tax lists, for the purpose of satisfying the morbid curiosity of such members of the public so inclined, with information always otherwise obtainable at the auditor’s office, or for the purpose of gain to a printer and publisher, would be to impute to the Legislature that which was never intended.

The present statute, "as do the earlier enactments, employs the words the county auditor “shall” cause a list of delinquent taxes to be published. In Miller, Pros. Atty., v. Lakewood Housing Co., 125 Ohio St., 152, 180 N. E., 700, which interprets the words of Section 5704 (108 Ohio Laws, pt. 2, 1243), predecessor of the section as it now stands, it is determined that the word “shall” is not mandatory, but only directory.

It is held in Stanton, Pros. Atty., v. Realty Co., 117 Ohio St., 345, 350, 158 N. E., 868, that: “The strict letter of a statute must yield to the obvious intent.”

Reverting to the Miller case, supra, at page 161 it is said: “Whether a statutory requirement is mandatory or directory depends on its effect. If no substantial rights depend on it and no injury can result from ignoring it, and the purpose of the Legislature can be accomplished in a manner other than that prescribed and substantially the same results obtained, then the statute will generally be regarded as directory; but, if not, it will be mandatory.”

We see in the auditor’s omission to publish the delinquent tax list no substantial right impaired, and no injury resulting to the relator or the public from ignoring it. The collection of delinquent taxes is not dependent thereon. Their collection can be otherwise accomplished by foreclosure. What is said in the Miller case, supra, from page 161 to its completion, might here profitably be quoted in full. It applies with equal force to the present act.

We note another new provision appearing in the new act. Section [5704b], General Code (114 Ohio Laws, 842, Section 4), provides: “Any failure or omission by the county auditor to make publication heretofore under Section 5704 of the General Code, shall not invalidate the right' to collect by suit or otherwise delinquent taxes, assessments, penalties, interest and costs for past years nor invalidate said right to collect as to pending actions.”

By this section it seems to us that the Legislature recognized that the auditor might omit publication of a delinquent tax list. At least, publication is not necessary to accomplish the purpose of Section 5704, General Code.

It is our judgment that the publication of delinquent tax lists under the present act is not mandatory, and the issuance of the writ is denied.

Writ denied.

Lemert and Montgomery, JJ., concur.  