Life Ins. Co. v. Hess, Aud.

This court in a majority opinion held that the plaintiffs had a full, adequate, and complete remedy at law under Sections 5609, 5610, 5611, et seq., General Code, for the determination of the issues involved, and were therefore not entitled to proceed by way of injunction. This opinion was based on Hammond, Treas., v.Winder, Rec'r., 112 Ohio St. 158, 147 N.E. 94, and Conn etal., Trustees, v. Jones, Treasurer, decided by the Court of Appeals for Van Wert county, on June 24, 1925. The majority opinion of this court dealt only with the question of procedure, and did not pass on the merits of the cause.

An application was then filed for a rehearing, or, in the alternative for withholding judgment until the Supreme Court of Ohio should render a decision in the Conn case. No judgment was entered in view of the fact that the Conn case was then pending in the Supreme Court of Ohio, and it was considered that the determination of the questions raised in that case might furnish a guide in the instant case.

The Conn case was decided by the Supreme Court of Ohio on June 15, 1926 (115 Ohio St. 186, 152 N.E. 897), and is, I consider, determinative of the right to proceed by way of injunction.

The question involved here is not that there is illegality or injustice in the amount of the assessment, but is as to the power to tax any part of the property in question.

If Sections 5327 and 9357, General Code, are unconstitutional, as claimed by the defendant, then the entire amount is subject to taxation; if constitutional, it is not. By the opinion in theConn case, and the cases therein cited, it is only necessary to show that the tax about to be assessed or collected is illegal, and is not necessary to show that great or irreparable injury is about to be done. As was said in the opinion in the Conn case, page 196 (152 N.E. 899):

"When the question raised is as to the very power to lay the tax, and not as to the valuation of the property, nor as to the amount of the assessment, injunction will lie under Section 12075. That section gives a remedy against the levy of an unauthorized tax concurrent with the remedy contained in Sections 5616, 5611-1, and 5611-2, General Code."

In the cases heretofore relied upon, some part of the tax was legal, but in this case, as in the Conn case, the claim is that the entire tax is invalid, because no part of it is authorized by law. Therefore Section 12075, General Code, provides a remedy, and this court has jurisdiction to hear the cause on its merits.

No judgment having been entered, and the cause having been fully presented on its merits, there is no necessity for a rehearing.

Considering the case on its merits, I concur in the opinion of Judge Cushing.