State ex rel. City of Cleveland v. Kosydar

Herbert, J.

Relator argues that since the excise taxes collected from certain public utilities located within its corporate limits are measured by the gross receipts of the utilities involved, they are actually income taxes within the meaning of Section 9, Article XII of the Constitution of Ohio, and are not excise taxes authorized by Section 10, Article XII. From this, relator concludes that Section 9 of Article XII imposes a clear legal duty upon respondents “to return one half of the taxes paid by public utilities on gross receipts realized in the city of Cleveland, and since they have not done so since this legal obligation was imposed on them in the year 1912, mandamus must lie and they should be ordered to return one half of such taxes to the city of Cleveland for all years from the date of the adoption of Article XII, Section 9 of the Ohio Constitution on September 3, 1912, to date, and for all years henceforth.”

This court has often declared that the tax levied upon the gross receipts of public utilities in this state is a tax upon the privilege of doing business here; it is an excise tax and not an income tax. Western Union Telegraph Co. v. Mayer (1876), 28 Ohio St. 521; Express Co. v. State (1896), 55 Ohio St. 69, 44 N. E. 506; Cincinnati, M. & L. Traction Co. v. State (1916), 94 Ohio St. 24, 113 N. E. 654. Cf. Angell v. Toledo (1950), 153 Ohio St. 179, 91 N. E. 2d 250. See, also, East Ohio Gas Co. v. Tax Commr. of Ohio (1931), 283 U. S. 465.

For tile purposes of applying Section 9 of Article XII of the Constitution of OMo, notMng in the syllabus or the opiMon of East Ohio Gas Co. v. Akron (1966), 7 Ohio St. 2d 73, 218 N. E. 2d 608, should be construed to represent a departure from tMs court’s position that the tax imposed upon public utilities by E. C. 5727.38 and 5727.81 is an excise as opposed to an income tax.

Eelator having f ailed to establish the existence of a clear legal duty upon respondents to grant the relief sought, the writ of mandamus is denied.

Writ denied.

0 ’Neill, C. J., Corrigan, Steen, Celebeezze, W. Beown and P. Beown, JJ., concur.