21 N.E.2d 868
No. 27534Supreme Court of Ohio.
Decided June 21, 1939.
Mandamus — Writ denied where another adequate remedy available — Municipal sewer rental charges certified for collection — County treasurer not commanded to accept only general taxes — County auditor not ordered to remove charges from duplicate.
IN MANDAMUS.
The relator, the Homer Owners’ Loan Corporation, seeks from this court a writ of mandamus commanding the Treasurer of Stark county to accept $34.18 in full payment of the general taxes and special assessments shown on the general duplicate of real estate taxes of that county and to give a receipt therefor and for an order requiring the auditor of that county to remove from the general duplicate of real estate taxes a charge for delinquent sewer rental charges certified by the city auditor of Massillon.
The city of Massillon, by leave of court, was made party respondent and filed an answer setting forth the enactment of an ordinance establishing the rates to be charged property owners for the use of a sanitary sewer system and the action of the city auditor in certifying
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delinquent rental charges in the amount of $6.60 to the county auditor as a lien against the premises, under Section 3891-1, General Code.
The answer of the county auditor sets forth steps taken by him to transmit to the county treasurer the amount certified by the city auditor for collection with the general real estate taxes.
The treasurer pleads refusal to accept the payment of general taxes amounting to $34.18 because $6.60 appears upon the tax duplicate for delinquent sewer rentals, which latter sum is not included within the former.
The auditor and treasurer pray for a dismissal of the petition in mandamus.
The relator contends that charges for delinquent sewer rentals are not taxes or assessments within the meaning of Section 2655, General Code; that there is no statute granting authority to a municipality to certify such rentals to the county auditor to be included upon the general tax list and general tax duplicate, and that mandamus lies to order the county treasurer to perform the duty of accepting taxes and give a receipt therefor and to require the county auditor to remove the charge from the general tax duplicate.
Mr. James White Shocknessy and Miss Florence G. Denton, for relator.
Mr. A.C.L. Barthelmeh, prosecuting attorney, for respondents, Fred C. Pontius, county treasurer, and Lester S. Lash, county auditor.
Mr. Emmett D. Graybill, for respondent, city of Massillon.
BY THE COURT.
Counsel for the county auditor and treasurer maintains that the relief sought is, in effect, injunction to prevent the collection of delinquent sewer rentals and therefore mandamus will not lie.
“The writ must not be issued in a case where there
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is a plain and adequate remedy in the ordinary course of the law. * * *” Section 12287, General Code; State, ex rel. Methodist Book Concern, v. Guckenberger, Auditor, 133 Ohio St. 373, 14 N.E.2d 9.
Writ denied.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.