
    The State, ex rel. The Tax Commission of Ohio, v. Mills, Auditor of Clark County, et al.
    
      Mandamus — Taxation — Assessing real estate — Aggregate valuation reduced by county commissioners — Section 5548, General ' Code — Remedy to restore' reduction — Section 5613, General, Code — State tax commission — Authority to increase aggregate valuations.
    
    1. Mandamus being an extraordinary remedy, such writ will not issue where there is a plain and adequate remedy in the ordinary course of law.
    2. A writ of mandamus will not issue, upon application of the state tax commission, to direct and control the action of a county auditor or a board of county commissioners as to matters upon which the tax commission is expressly authorized by statute to act, or to correct errors which such commission is empowered by statute to reptify.
    (No. 17051
    Decided July 12, 1921.)
    In Mandamus.
    This is an original action brought in this court by the tax commission of Ohio against the county auditor and the members of the board of county commissioners of Clark county. In the petition the relator avers that such investigations, proceedings and orders were had by the defendant, the county auditor, and his predecessor in office, that he found the real estate in each taxing subdivision of Clark county to be assessed at its true value in money for the tax year 1921, and such finding was duly submitted .to the county commissioners of said county as required by law; that the board of county commissioners upon hearing, after due notice thereof, found and determined that all the real estate in each tax subdivision of said county was not assessed for taxation purposes at its true value in money, and ordered that a general or horizontal decrease of said assessment so submitted by the county auditor of 10 per cent, of the total value be made, and that the assessment list or duplicate in all subdivisions be changed by reducing all of the real estate valuations 10 per cent, of the total valuation; that the county auditor, unless otherwise ordered by the court, will proceed to apply and put into effect the order of the county commissioners, which it is' averred will result in a loss of a large amount of taxes which would otherwise be due the county-and state for the year 1921; and that the county commissioners refuse to make any change in their said order or take any action in the premises, and the county auditor refuses to comply with the demand of the relator that he should ignore that part of the order of the board of county commissioners making such 10 per cent, decrease. The, relator therefore prays for a writ of mandamus requiring the county commissioners to set aside and vacate their action complained of, or that the county auditor be required to ignore.that part of the commissioners’ order making such reduction and be required to proceed with the reassessment of said real estate as required by law.
    The answer contained four defenses: (1) A general denial. (2) That the tax commission has an adequate remedy at law. (3) That the matters set up in the petition of the relator were formerly adjudicated in an action in the court of appeals of Clark county, wherein it is alleged the relator in this action was in privity with the defendant William C. Mills, as county auditor, which action was one in mandamus against the board of county commissioners, involving the same question herein presented, and that the court of appeals in that action found and adjudged the demurrer of the board of county commissioners to the petition of William C. Mills, county auditor, to be well taken and sustained the same and entered final judgment in favor of the commissioners, dismissing the petition of the relator in that case, and that such judgment of the court of appeals has'not been reversed or modified and is still in full -force and effect. (4) That by virtue of the order made by the county commissioners’ the real estate of Clark county is listed at its true value in money.
    A general demurrer was filed to each separate defense stated in the answer, and thereby arose the issue of law presented to this court for its consideration.
    It was conceded that for the purposes of the demurrer the facts set. out in the third defense could be considered with the first defense, and the demurrer therefore presents the legal question upon its merits notwithstanding the general denial contained in the first defense.
    
      Mr. John G. Price, attorney general; Mr. Clarence D. Laylin and Mr. Ray Martin, for relator.
    
      Mr. A. N. Summers; Mr. William M. Rockel and Mr. Donald Kirkpatrick, for defendants.
   Matthias, J.

The primary question presented is whether a writ of mandamus should be denied the relator on the ground that an adequate remedy is provided by law. Such issue is made by the demurrer to the second and third defenses of the answer, and if that is valid it is a full and complete defense to the claims set up in the petition.

Mandamus is an extraordinary remedy and may issue only when ordinary remedies are inadequate. This requirement has become a provision of the statute and is now found in Section 12287, General Code, which provides that “the writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law.”

The action of the board of county commissioners complained of is that when it came to consider the .findings of the county auditor that the real estate of each subdivision in' the county was assessed for taxation in the aggregate at its true value in money as it then appeared on the tax duplicate of the county, the board found that the real estate in each subdivision of the county was in the aggregate not assessed at its true value in money, but in excess thereof, and that instead of setting aside the asT sessment the board proceeded, under authority which it claims is conferred upon it by Section 5548, General Code, to modify the findings of the county auditor, and passed a resolution wherein the county auditor was directed “to modify his said duplicate in all of said townships, villages, wards and cities of said County of Clark, by reducing the real estate valuation of same to the extent of ten per cent, by horizontal reduction, for the taxable year of 1921, and that said Auditor proceed to enter upon his duplicate the valuations thereof, so modified, in accordance with this order, as the assessed real property valuations for each township, village, ward, city and political subdivision of said county, as the true value in money for taxation purposes for said year of 1921.”

It is urged on behalf of the tax commission that the board of county commissioners having determined that the real estate of any subdivision was not on the duplicate at its true value in money it then became the duty of the county, auditor, under the provisions of Section 5548, General Code, to proceed to assess such real estate for the purpose of taxation; and that is the procedure sought now to be enforced by a writ of mandamus.

Undoubtedly the action of the board of county' commissioners in the respect complained of did amount to a rejection of the findings of the county auditor. But the tax commission is expressly authorized by the further provision of Section 5548, General Code, to order that such assessment be made under the direction of the county auditor, “when the tax commission of Ohio, after investigation, finds that the aggregate value for taxation of the real estate therein is not its true value in money.”

It further appears that under Sections 5612 and 5613, General Code, authority, full and complete, is conferred upon the tax commission of Ohio to provide the very remedy sought in this action in mandamus; for by the provisions of those sections the tax commission is authorized to either increase or diminish the aggregate value of the real or personal property of any such county, township, village, city or taxing district by such rate or per cent., or by such amount, as will place such property on the tax list at its true value in money. An adequate remedy is thus provided by law. The reason for applying the rule is particularly cogent where by clear and express provision of law the remedy is placed in the hands of the very administrative board which is seeking the extraordinary remedy of mandamus. It is our view, therefore, that the so-called second defense is a complete defense to the action set out in the petition.

The conclusion reached renders it unnecessary to discuss the other defenses of the answer.

Writ denied.

Marshall, C. J., Johnson, Hough, Wanamaker and Robinson, JJ., concur.  