Citations
- 3 Ohio St. 2d 177
Full opinion text
Per Curiam.
On their demurrer to the amended petition, respondents contend that relator cannot bring this action because he is a nonresident and therefore not beneficially interested in the relief sought.
Section 733.58, Revised Code, reads:
“In case an officer # * of a municipal corporation fails to perform any duty expressly enjoined by * * * ordinance, the solicitor shall apply to a court of competent jurisdiction for a writ of mandamus to compel the performance of such duty.”
Section 733.59, Revised Code, reads so far as pertinent:
“If the city solicitor fails, upon the request of any taxpayer of such municipal corporation, to make any application provided for in Section * * # 733.58 * * * Revised Code, such taxpayer may institute suit in his own name, on behalf of the municipal corporation.”
Section 733.59, Revised Code, uses the words, “Any taxpayer of such municipal corporation.” Respondents’ answer admits that relator is a taxpayer of Columbus. There is no residence requirement in the statute. If relator has a sufficient beneficial interest in the Columbus city government to justify imposition of its income tax on him, as we indicated by our holding in Angell v. City of Toledo (1950), 153 Ohio St. 179, 91 N. E. 2d 250, it necessarily follows that he has an interest in having the tax collected from others who should pay it, and is therefore beneficially interested in the relief sought by this action.
Some members of this court have raised the question whether the Columbus income tax ordinance imposes upon respondents any duty that can properly be enforced by a writ of mandamus. However, in their answer “respondents admit that * # # [the respondent] auditor of the city * * * is charged with the administration and enforcement of” that ordinance. The specific terms of the ordinance require that admission. Thus, Section 361.27 states that “the city auditor is hereby charged with the administration and enforcement of” this income tax ordinance.
There are several provisions of the ordinance specifying what the auditor “may” do or shall be “authorized” to do with •respect to a taxpayer who has not complied with the ordinance. However, the specification of what the auditor may do in performing Ms specific overall duty to enforce the ordinance is intended to aid the auditor in performing his duty to enforce that ordinance—not to diminish or provide him with the means of escaping that duty.
This court has previously issued writs of mandamus directing a public official to perform a duty imposed upon him, even though he may have had wide discretion as to the manner of performing that duty. See, for recent examples, State, ex rel. Scott, v. Masterson (1962), 173 Ohio St. 402, 183 N. E. 2d 376, and State, ex rel. Park Investment Co., v. Board of Tax Appeals (1964), 175 Ohio St. 410, 195 N. E. 2d 908.
In their answer, respondents set up two separate defenses. In the first, it is alleged “that there is a defect of parties respondent in that the legislators enumerated in relator’s amended petition whose tax liability is ultimately being determined in this action have not been joined as parties respondent.”
It is not necessary to hold, as we could, that respondents waived their right to raise this objection by not specifying it as a ground of demurrer to the amended petition. See Sections 2309.10, 2309.09 and 2309.08 (F), Revised Code.
This defense is apparently based upon the conclusion that the “tax liability” of each legislator named in the amended petition will “ultimately * * * be determined in this action” if the writ is allowed. It will not. The only effect of this action will be to require the city auditor to perform his duty of enforcing the income tax ordinance against those named legislators who have admittedly not complied with the valid requirements of the ordinance. As stated by Hart, J., in State, ex rel. Donsante, v. Pethtel, Aud. (1952), 158 Ohio St. 35, 41, 106 N. E. 2d 626:
“This is an action only to compel public officials to perform their official duties, and it is not necessary to make third persons parties defendant, although they may be affected by the order. * * *
“* * * the judgment in this case shall not affect the right of any taxpayer or interested party to resist the collection of the tax * * * and to establish his * * * defenses against such collection, if any * * See, also, Kluth v. Andrus, Dir. of Public Safety (1952), 157 Ohio St. 279, 105 N. E. 2d 579.
The second defense is set up by the following averments: