State Ex Rel. Mohr v. Judges of Court of Common Pleas ( 1943 )

This cause is in this court on appeal from the final order of the Court of Appeals sustaining a demurrer to and dismissing the petition of relator for a writ of mandamus. Relator, on behalf of himself and all other leaseholders of Miami College lands, sought a writ compelling the judges of the Court of Common Pleas of Butler county to perform their duties with respect to an affidavit and charges of contempt, theretofore filed in such court asking it to issue an order of attachment for contempt against the treasurer and auditor of that county for failing to enforce an order of the Supreme Court of Ohio entered December 23, 1856. It was alleged that such order perpetually enjoined the assessing, levying and collecting of any and all state taxes upon Miami University land. (Kumler v. Traber, Treas., 5 Ohio St. 442.)

The petition in the present cause in the Court of Appeals alleged that relator filed in the Court of Common Pleas an affidavit and charges in contempt against the treasurer and auditor alleging they engaged in a campaign to wilfully refuse to obey the perpetual injunction and are maintaining actions "to foreclose alleged tax liens of the state of Ohio" on such perpetually leased lands by certifying them as delinquent for nonpayment of taxes and having the lands placed upon the forfeited lists.

Neither the petition nor the affidavit filed in the Court of Appeals alleges specifically that the treasurer and auditor are assessing, levying or collecting state taxes on the land. The affidavit recites merely that those officers are seeking to foreclose alleged tax liens and are certifying such lands as delinquent for nonpayment of taxes, without alleging that any are state taxes. The record before this court does not disclose that either the treasurer or auditor is violating any order of this court with reference to state taxes such as were before the court in the case of Kumler v. Traber, Treas., supra.

Mary M. Hughes, a leaseholder not specifically named as an appellant, on her application is dismissed from this proceeding.

The judgment of the Court of Appeals sustaining the demurrer and dismissing the petition is affirmed.

Judgment affirmed.

WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, BELL and TURNER, JJ., concur.

WILLIAMS, J., not participating.