
    Heuck, County Aud., et al. v. Devou.
    
      (Decided December 10, 1934.)
    
      Mr. Louis J. Schneider, prosecuting attorney, Mr. Walter M. Locke and Mr. Wm. J. Ford, for plaintiffs in error.
    
      Mr. Sol Goodman and Mr. Boy L. Struble, for defendant in error.
   Hamilton, P. J.

Plaintiff in error Robert Heuck, as auditor of Hamilton county, Obio, in tbe month of April, 1931, appraised and valued tbe property and real estate of William P. Devou, defendant in error here, for tbe purpose of taxation.

Devou claimed tbe valuation by tbe Auditor to be grossly excessive and beyond tbe true market value of his real estate, of which be owned many pieces.

Devou complained to tbe Board of Revision of Hamilton county, which complaints, after bearing, were determined by tbe board against Devou. He thereupon appealed to tbe Tax Commission of Obio. Tbe Tax Commission dismissed Devou’s appeals. Devou then prosecuted error to the Court of Common Pleas under favor of Section 5611-2, General Code, seeking a reversal or a vacation or modification of. tbe order of tbe Tax Commission dismissing tbe appeal.

Tbe Tax Commission gave as its reason for dismissing the appeals — Devou having filed an appeal as to each of bis several tracts of real estate — that Devou, after filing bis complaints, bad paid taxes for tbe full assessed tax value complained of, as the same appears on the tax duplicate of 1931, “-which abates said appeal”.

Upon a hearing upon the petition in error to the Court of Common Pleas, that court reversed the action of the Tax Commission in dismissing the petitioner’s complaint, and directed that the petitioner’s complaint be returned to the Tax Commission for a hearing on its merits.

The trial court concluded that the valuation made by the Auditor was for a period of six years, under Section 5548, General Code, and was not the yearly valuation; that, therefore, the payment of the taxes of 1931 did not abate the appeal; that the payment of the taxes pending a hearing of his complaint merely protected the petitioner against penalties in case his complaint should be determined adversely. Whether, if it was finally determined that the property was overvalued, such determination would justify a return of any of the taxes paid, would be a question to arise between the taxpayer and the county treasurer in an action for that purpose. Whether the taxes were paid is of no moment to the Tax Commission, whose duty it is to examine the complaint and pass upon the same. Moreover, whatever the reason given by the Tax Commission of Ohio may be for the dismissal of the complaint is immaterial. The fact remains that it did dismiss the complaint and refuse to hear it. This gave rise to the right of the taxpayer, to file his petition in error to the Court of Common Pleas for reversal, vacation or modification of the order of the Tax Commission dismissing the complaint.

We are in accord with the holding of the trial court on these questions.

The further question raised is whether the trial court should retain the case and ascertain whether there had been an over-valuation of the property, or remand it to the Tax Commission for the purpose of examining the complaint.

We are of opinion that the trial court had the right, in its discretion, to retain the case, examine the complaint and make a finding concerning the same, or remand the case to the Tax Commission for a hearing on the complaint.

An analogous case on this question was considered by the Supreme Court of Ohio, Floyd, County Aud., v. Manufacturers Light & Heat Co., 111 Ohio St., 57, 144 N. E., 703. True, this was a case where the commission was examining the property of a public utility, but the principle of the power of the Tax Commission under Section 5611-2, General Code, and the provision for prosecuting error to the Court of Common Pleas in that section, are considered in the Floyd case. The third proposition of the syllabus is:

“In such a proceeding the court of common pleas is required upon request to find the ultimate facts upon which its judgment is based, but need not malee a finding of the value of the property, if in its discretion it orders the cause remanded to the tax commission for further proceedings. ’ ’

In the Floyd case the Tax Commission proceeded to fix a valuation on the property of the utility. From the valuation fixed, a petition in error was filed in the Court of Common Pleas, as was¡ done in the case here under consideration. Upon the hearing in the Common Pleas Court, that court reversed the order of the Tax Commission for revaluation of the property in accordance with the findings of the court; the court having made separate findings of fact and conclusions of law. The right to remand to the Tax Commission was challenged among other questions in the case. In commenting on Section 5611-2, General Code, Chief Justice Marshall, in the opinion, at page 65, stated:

“It will further be observed that the court of common pleas may reverse, vacate or modify. A reversal or vacation would not necessarily be a final determination of the matter, and on the other hand a modification clearly contemplates a final judgment. It would seem, therefore, that the court of common pleas, in its discretion, might either make a finding of value and render final judgment or reverse and remand. It must of course be a sound judicial discretion and should only render final judgment where the testimony is such as to require no further data or information and where the case is one of sufficient clearness to dispense with the employment of taxation experts.”

In the case here under consideration the Tax Commission had made no finding of value. There was no testimony or data before the Court of Common Pleas in the error proceeding. The trial court, under authority of Section 5611-2, General Code, might have taken additional evidence. This presupposes some evidence to have been offered on which the commission could act. If we should conclude that the Common Pleas Court could take additional evidence, -to secure the evidence on which to render final judgment, under Section 5611-2, General Code, as interpreted by the Supreme Court in the Floyd case, the Court had the discretionary power to reverse and remand the case to the Tax Commission for further proceedings and valuation.

We find no error in the record, and the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Cushing and Eoss, JJ., concur.  