source: Caselaw Access Project

author: Bradbury, J.

license: Public Domain

text:
    State ex rel. v. Crites, Auditor.

      Mandamus — Practice in — Taxation—Correction of false returns — Duty of county auditors, in relation thereto — Sections 27S1 and. 27S2, Revised Statutes, construed.

    1. In mandamus, as in civil actions, a general demurrer to the reply will search the record and put in issue the sufficiency of the petition.
    2. The act of April 10,1888, (85 Ohio Laws, 170,) entitled an act “ To secure a fuller and better return of property for taxation and to prevent omissions of property from the tax duplicate,” is constitutional, and a contract made pursuant to its provisions is legal and valid. One who is employed under it to furnish facts and evidence necessary to authorize the county auditor to subject to taxation property improperly omitted from the tax duplicate, who is to receive for his services a percentage of the tax collected on the restored property, has an interest in the matter sufficient to entitle him to maintain a proceeding in mandamus against the county auditor to compel him to act upon the facts and evidence furnished by the relator.
    3. It is the duty of a county auditor to act under sections 2781 and 2782, Eevised Statutes, whenever he is “informed or has reason to believe” that property has been improperly omitted from the tax duplicate of the county. If he declines to act upon reasonable information, a petition in mandamus, by a relator who seeks to compel him to act, is sufficient, if it state facts showing that there was reason to believe that property had been improperly omitted from the tax duplicate.

      4. Where, upon a petition in mandamus, an alternative writ is issued commanding a number of acts, either separate or connected, to bo done by the defendant, the relator is entitled to a peremptory writ for such distinct acts, or parts of connected acts, as he may show a right to have performed, where there is not such mutual dependence between the several acts, or parts of acts, that they cannot be separated or divided.
    (Decided February 24, 1891.)
    Error to the Circuit Court of Allen county.
    The plaintiff in error filed in the Circuit Court of Allen county, Ohio, a petition against the defendant in error praying for a writ of mandamus “ requiring him to proceed upon the facts and evidence placed before him by the relator and ascertain as far. as practicable and enter for taxation' on the tax lists of said county . . . any personal property, moneys, credits, investments in bonds, stocks, or otherwise, owned by Calvin S. Brice” in any of the “five years running baok from the year 1889,” and subject to taxation in said county, which petition reads as follows:
    “ The State of Ohio, Ci7’cuit Court of Allen county, ss.
    “ The State of Ohio, on relation of Henry W. Morgenthaler, Plaintiff, against Cy7'us JD. Crites, County Auditor of Allen county, Ohio, Defendant.
    “ PETITION.
    “ The relator says: *
    “ That he is a resident citizen of the state of Ohio, and owner of property in said state assessed for and subject to taxation therein, and is a taxpayer of said state, and that he is and has been employed under a contract of date May 26,1888, made with him by the county auditor, county treasurer, and county commissioners of said Allen county, and has given bond, pursuant to the provisions of an act of the General Assembly of Ohio, entitled an act ‘ to secure a fuller and better return of property for taxation and prevent omissions of property from the tax duplicate,’ passed and taking effect April 10, 1888:
    “ That said contract specifies that he is to ascertain and furnish to the auditor of said county, at his own cost and expenses, the facts and evidence necessary to authorize said auditor to subject to taxation any property improperly omitted from the tax duplicate, and for his services therein, out of money actually paid into the county treasury on account of such charges upon the duplicate, but not otherwise, he shall be entitled to receive and be paid by warrant of the county auditor upon the county treasurer, one fifth, or twenty per centum of said money, which said warrant of the county auditor is the only act or-proceeding to be done or had by said auditor under said contract:
    “ That the defendant,- Cyrus D. Crites, is the county auditor of said Allen county, and that the statutes of the state of Ohio charge it upon the county auditors throughout the state, by their office, on being informed or having reason to believe that any person whose duty was to list or return for taxation personal property, moneys, credits, or investments, has made a false return or evaded making a return, to ascertain, as near as practicable, the true amount that such person ought to have returned or listed for the year of said inquiries, and for not exceeding the five years next prior thereto, and to enter said amounts upon the tax list against such person, with the taxes thereon at the proper rate for each year, and to give a certificate thereof to the county treasurer for collection:
    “ That heretofore, to«wit, August 10,1888, the then county auditor of said county, at the instance of relator, in discharge of his duties under said contract, issued notice to one Calvin S. Brice, then being in the city of New York, of discovery by relator of error in the tax returns of said Brice in said Allen county, and notifying said Brice to appear before said auditor, August 28,1888, and show cause why said return should not be corrected and the omission placed on the treasurer’s duplicate for collection; which said notice was duly served by relator in said city of New York personally upon said Brice, who paid .no attention thereto but to announce that he would have the law repealed, and he did not appear at the time nor at any time before said auditor, and instead, on said August 28, 1888, appeared for him as his attorney John E. Richie, Esq., with a request to said auditor to lay the matter over for a time, and it was so laid over by said auditor upon said request, without his fixing the time, and remained so laid over for the rest of the term of said county auditor with no further action by him and until the term of office of defendant as his successor:
    “ That thereupon, to wit: September 8, 1889, at the instance of relator, the defendant as Said county auditor issued a second notice reciting the former notice as aforesaid to said Calvin S. Brice, and that said Brice had failed to appear, and in said notice fixing September 16,1889, as the day on which said Brice should have an opportunity of showing that his said tax returns were correct, or that, in default, said auditor from the statement and evidence furnished by relator would proceed to assess and charge said Brice upon.the tax duplicate of said county with the amounts and for the years found against him, which said notice was mailed by said defendant to said Brice in said city of New York, but said Brice did not answer, nor appear on the day named, nor on September 19,1889, nor on September 24, 1889, to which successive days said hearing was continued by defendant, and on said last named day defendant of his own motion postponed further action until October 2, 1889, to give opportunity, as his entry of said continuance recited, for said Brice to appear, and to enable said defendant to examine the evidence, and, September^, 1889, upon petition of said Calvin S. Brice, filed that day in the court of common pleas of said county, an affidavit that for each of the six years last past said Brice had made correct, full, and complete return of all his property of every kind and description subject to taxation in said county, the said defendant was by allowance of injunction by Hon. John E. Richie, then one of the judges of said court, enjoined from proceeding further until other order of said court or judge:
    “ That, thereupon, at expense of relator, attorneys were employed, with the assent of' said defendant, to represent him in the matter, and notice for taking the deposition of said Brice in New York city was served upon the attorneys of said Brice, and affidavit was made by defendant for process upon said Brice so to appear and testify, in which affidavit it is sworn, among other things, by defendant, that he was informed and had reason to believe that the tax returns of said, Brice for each of the years from 1884 to 1889, both inclusive, were false returns, and the day fixed for taking said deposition, and to which said process served upon Brice was returned, was October 10,1889; but before that day, upon application of the attorneys of said Brice, without notice at the time to relator and against his protest upon becoming informed, the said defendant postponed all further action to be taken by him as auditor by a continuance until November 1, 1889, this notwithstanding injunction against any step in the proceedings; and thereupon on approach of the day when said Brice was to appear under process and testify, that is to say, in the afternoon before that day, said injunction suit in Allen county was dismissed by said Brice by his attorneys there upon their motion, and his attorneys in New York city, on the next day, appeared for him at the taking of said deposition with a telegram of said dismissal, and with instructions to say from said Brice he would not appear and testify, and said defendant likewise telegraphed notice of said dismissal:
    “ That said injunction suit being so dismissed, relator immediately pressed upon said defendant to move in the matter, and that he take up the evidence and as county auditor ascertain as near as practicable the true amounts that said Calvin S. Brice ought to have returned for taxation in each of the years, but said defendant contemporaneously with the dismissal of said suit by the attorneys of Brice had been supplied with an opinion by the prosecuting attorney of said county, wherein after caution to said defendant against the harassment of the citizen, said defendant was advised of his duty, that it was to inquire of relator to make out a prima facie case, in other words, by witnesses competent to testify ' and to be subpoenaed by said auditor if within the jurisdiction, or by proper records duly authenticated, to furnish to said defendant the kind of property omitted, the value of the same, and what it was worth each of the years, and that after such prima facie case had been made, then before placing any amount on the duplicate, the said auditor must cite said Brice, give him opportunity to correct the returns already made, and show him the evidence against him; and said defendant, although first offering to permit discussion by relator of said opinion, and fixing a future day therefor, then declined to hear any discussion, and declined to refer to the auditor of state or attorney-general for advice, and announced that said prosecuting attorney was his constituted legal adviser, and that said opinion would protect him, said auditor, from responsibility:
    “ That after said decision of said defendant, he professing readiness to continue further action until after the approaching election in November, and being so requested by relator, who was taken by surprise at said decision, did so continue it after a conference of his own with the attorneys of said Brice, to November 22, 1889, and from said date continue the day again to January 16,1890, against the protest of relator at the length of the time :
    “ That after said last continuance, to wit, December 16, 1889, relator being required under said opinion of said county prosecuting attorney to place before said defendant as county auditor, prior to the day to which said continuance was had, that is, January 16,1890, all facts and evidence to be submitted in the matter by relator, and the said Calvin S. Brice, having meanwhile come within the state of Ohio and said county, and within reach of process, relator demanded of defendant that as county auditor he issue such process for said Brice, as a witness to testify, returnable December 26, 1889, which said defendant first declined to do until further consideration, and then afterwards wilfully refused, giving no reason therefor but the engagement of said Brice in canvassing for election in the state of Ohio, to the senate of the United States, and he did not issue said process ; and on the day to which said continuance was had, to wit, January 16, 1890, the said Brice not appearing on that day, and facts and evidence being before said defendant as county auditor of the holdings by Brice in each of said years, from 1889 back to 1884, of personal property, investments in bonds, stocks, etc., subject to taxation in said county, and not returned by or for Mm for taxation, to the amount in some of said years of more than §2,000,000, not including penalties, the relator demanded of said defendant that the true amounts thereof, as nearly as it was practicable to ascertain, be entered by defendant upon the tax lists of said county against said Calvin S. Brice, and the taxes extended thereon, and certificates given to the county treasurer for collection in accordance with law; but said defendant refused, and again continued the day, not at first fixing it until after conference of his own with said Brice, or attorneys of said Brice, and then fixing it for February 6,1890, and when so continuing said day, declining to say on demand of said relator, whether or not he would even then issue process for said Brice to testify as a witness, but after fixing said continuance to February 6, 1890, he then issued said process for that day, which process relator procured to be served upon said Brice :
    “And now, so it is that said Calvin S. Brice departed out of the state of Ohio to the city of New York, soon after said last-mentioned continuance, nor did he return therein on said February 6,1890, or appear before said defendant as county auditor, and on that day relator again, as before, demanded of said defendant that he proceed as county auditor, under the statute in such cases, and that the amount for taxation against said Brice, as nearly as it was practicable to ascertain, be entered upon the tax lists by defendant, but said defendant refused and still doth refuse further to proceed or act in any manner whatever in the matter, and has indefinitely postponed and still postpones all action, because of a suit brought February 5, 1890, in the court of common pleas of said county, wherein, by allowance of the Hon. John E. Richie, judge, at the same time with the filing of said petition upon the evening of that day, an injunction had issued against the said defendant as county auditor, and against the county treasurer and county commissioners of said county, a certified copy of which said petition, and of the entry of allowance of said injunction, the relator now produces and files herewith:
    “ That said suit is by one Austin C. Reichelderfer, represented therein by attorneys-at-law who are the same that are now and have been representing said Calvin S. Bricej and said Reichelderfer, in his said petition, verified positively, and becoming for the purpose his sworn affidavit, represents himself to be a taxpayer of said county, sets out the contract of employment of relator aforesaid, and alleges that said contract is without color of authority or warrant of law, and that the per centum of collections paid and to be paid relator, under said contract,'has been and will be a diversion of taxes levied, contrary to the statutes and constitution of the state, and to the constitution of the United States, and prayer is for an injunction against proceeding any further under said contract in any manner whatever, and by order of allowance of said injunction the said defendants were restrained as prayed from proceeding any further or doing any act under the contract set forth in the petition:
    “ That said contract set forth in said petition is in terms as hereinbefore recited, and is not for the doing or proceeding with any act or thing, in any manner whatsoever, by said defendant as county auditor, until and as when, upon the amounts charged for taxation by said defendant under his general statutory duties as county auditor, the taxes thereon are collected and are in the county treasury, and that the demand aforesaid by relator of said defendant, and his refusal, was not of or for any proceeding or act under said contract, but for discharge of an independent duty specially enjoined upon said defendant by law and resulting from his said office of county auditor:
    “ That relator is not party to said injunction suit, nor has he the right to intervene therein; that without action, as aforesaid, demanded of said defendant as county auditor, before the date for his making settlement for 1889 with the county treasurer, all power of said auditor so to act will be lost for one of said years ,• and that the relator is without other adequate remedy in the premises than by mandamus against defendant.
    “ Wherefore, relator prays that an alternative writ of mandamus be allowed and issue against said defendant requiring him to proceed upon the facts and evidence placed before him by relator to ascertain as near as practicable, and to enter for taxation on the tax lists of said county, in sums and for the years found by said defendant, not exceeding five years running back from the year 1889, any personal property, moneys, credits, investments in bonds, stocks, or otherwise, owned by Calvin S. Brice in any said year or years subject to taxation in said county, and not returned by or for said Brice nor taxed therein, and that said defendant charge the proper rates of taxes thereon, and proceed as in such case by the statute in all respects is made and provided, or show cause at the time to be specified by^ the court in said writ why he hath not done so, and that upon final hearing hereof a peremptory writ of mandamus be awarded to the same end and object, and that relator further have his costs and all other proper relief.”
    On this petition an alternative writ was issued commanding the defendant to proceed as prayed for in the petition or show cause, by a day named, why he had not done so.
    Whereupon the defendant, on the return day of the alternative writ, answered setting forth in the following terms, the grounds of his refusal to obey its commands.
    “ ANSWER.”
    “ The defendant, for answer to the petition, says:
    “ His first connection with the matter stated in the petition began September 3, 1889, prior to which time the relator had not appeared before him, or made any claim or request in relation to the tax return of said Calvin S. Brice, or furnished anything purporting to be evidence upon which said return might be corrected.
    “ On said September 3, 1889, a citation was issued to said Calvin S. Brice by this defendant at the request of the relator, and in reliance upon his statement, without proof, that the tax return of said Calvin S. Brice was incorrect. September 16, was the day fixed for his appearance. On September 16, the investigation was continued to September 19, and on September 19, it was continued to September 24; both said continuances were made at the sole instance and request of the relator.
    “ On September 24, relator filed certain papers alleged by him to be evidence in such investigation. Without passing upon the merits of such evidence, the defendant continued the cause until October 2, 1889, to permit said Brice to appear and examine the ease made against him. The relator demanded that this defendant should assess and charge said Brice, upon the tax duplicate for the six years mentioned in the petition, with large sums of money, in each year, as omitted sums upon which it was alleged he was properly assessable. This defendant finding the evidence insufficient, declined and refused. Thereupon said relator in order to induce the defendant to perform his duty improperly, advised this defendant that although said Brice might be charged with an improper or excessive amount, and upon insufficient evidence, he could institute legal proceedings to correct the same, and in the same conversation he reminded defendant of the large commission he the defendant would receive thereby, and offered to add to the commissions that would accrue to the defendant under the law, ten per cent, of the sums that would accrue to the relator under his contract with the commissioners. The suggestions and the offer of the relator were declined, and the proof being insufficient no sums were as'sessed against said Calvin S. Brice, and the cause stood continued until October 2, 1889, for further action.
    “ On the 27th day of September, 1889, an action was brought in the court of common pleas by said Calvin S. Brice, enjoining the defendant from taking any further steps in the inquiry, and he was served according to law. After the service of the injunction, and prior to October 2, 1889, the relator withdrew all his alleged evidence from the office of this defendant and beyond the county of Allen.
    “ On the 2d day of October, 1889, while such injunction was still in force, the cause was continued until November 1, 1889, by which time defendant supposed there would be some final disposition of said injunction.
    “ On the 9th day of October, 1889, the plaintiff voluntarily dismissed his injunction suit, which fact this defendant wired to said relator at New York at his request. Thereupon defendant applied, to the prosecuting attorney of the county for advice as to his duty in the premises, as in law he had a right, and was bound, when in doubt, to do; and upon the 11th day of October he was furnished with a written opinion, the purport of which is substantially stated in the petition. The warning against ‘ the harassment of the citizen ’ was expressed in these words: ‘You are not invested with power to harass persons with vexatious litigation upon mere surmise or suspicion.’ This opinion the defendant brings with him into court.
    “ On the 12th day of October, 1889, said relator appeared, and, without filing the papers he had withdrawn, demanded that said Calvin S. Brice should be placed upon the tax list for the years stated in the petition. Defendant declined to act on that day,-as the case had been - continued to November 1, 1889, but said to relator that he would investigate the case at once if he would leave the papers and the alleged evidence, and be prepared by said date to act upon the same.
    “The relator left the office without filing any of said papers. On November 1, the case was continued until November 22, at the request of the relator. On the 22d day of November, the attorney of the relator appeared and requested a further continuance. This was granted by this defendant, and the 16th day of January, 1890, was fixed with the consent and acquiescence of said attorney, who was then informed that the relator would be expected to file his papers and evidence in time to enable this defendant to examine the same and render his finding on said January 16, 1890, said alleged evidence being voluminous and requiring much scrutiny. On the 16th day of December, 1889, relator appeared, and, stating in writing that at some future day prior to January 16, he would file papers, exhibits and testimony, and furnish names of witnesses to be examined, then demanded that a subpoena should issue for said Calvin S. Brice, returnable December 26 ; and filing a few papers and exhibits purporting to be evidence, departed. This defendant refused to issue said subpoena returnable at that time, for the reason that the cause had been continued by consent until January 16, 1890, and when said cause was so continued to that date, the defendant had stated that one reason for the continuance into January was to prevent the investigation from being used against the said Calvin S. Brice in his then pending canvass for the office of senator from the state of Ohio, to which the attorney for the relator had made no objection. And the defendant avers that the relator pressed the matter in December, 1889, at the time of the pendency of said canvass, for the sole purpose of using an undue pressure upon said Brice, and of compelling him' to make a settlement he might' not otherwise make or be justified in making. And this defendant was not willing that the power of his office should be used to the disadvantage of the citizen when not necessary for the purpose of justice.
    “ On the 15th day of January, 1890, the relator filed voluminous papers, exhibits, copies, and alleged evidence, and on the 16th day demanded a subpcena for said Brice as a witness under the statute, which, on the 18th day of January, was issued and served, citing him to appear February 6, 1890, to which day the cause was continued to enable defendant to examine the papers, exhibits, alleged evidence, etc., which said relator had not filed until January 15, as aforesaid, and to give his findings thereon.
    “Pending said continuance, to wit, on the 5thday of February, A. r>. 1890, one Austin C. Reichelderfer began his suit in the court of this county praying for an injunction against this defendant, the treasurer and commissioners of the county, in the following language, being the same suit referred to in the petition: ‘ He therefore prays that a temporary injunction may issue restraining defendants and each of them from proceeding any further under said contract in any manner whatever, and that upon the final hearing said contract may be declared null and void; ’ and the injunction was allowed as prayed for and served upon this defendant.
    “ This defendant being ignorant in the law, and without the knowledge of judging of the extent and operation of so general an injunction, applied to the prosecuting attorney for advice, and was informed and advised by him that pending said temporary injunction it would not be safe for him to proceed as demanded by said relator. And the said injunction was in full force and effect at the time this action was commenced, and is yet.
    “The defendant denies the false and scandalous allegations contained in the petition, that he has acted in collusion with the said Calvin S. Brice or his attorneys; that he has in any way evaded, delayed, or refused the performance of his duty, or refused the proper or reasonable demands of said relator. He avers that he endeavored to perform his whole duty under the law, and acted in good faith upon the advice of the prosecuting attorney, which he believes was given in good faith.
    “ And now, that by the action of the relator the matter has been brought within the jurisdiction of the court, this defendant desires the guidance and instruction of this court as to his duty, should it determine that he should proceed notwithstanding said injunction. He is informed by his counsel that in the litigation upon this question throughout the state various decisions have been made by the courts thereof, some holding the law of 1886 is unconstitutional, and that the law of 1878 is not in force because repealed by the second section of the law of 1886; others holding that the law of 1886 must be given a prospective effect only, and that under it no tax or penalty accruing prior to that year can be assessed where the returns were false or incorrect, but taxes since that date may be assessed. Some of said causes have gone to the Supreme Court of the state, and are about to be heard therein.
    “ And the defendant prays the court to direct him if he shall proceed, and, if so, for what years he shall make inquiry and assess the penalty.”

      To this answer the relator filed the following reply:
    “ REPLY.”
    “ Relator denies the allegations of the first paragraph of the answer.
    “ Relator admits that the continuances from September 19, and September 26, alleged in the second paragraph of said answer, were at his request, but says that such request was because of his sickness, and that said Calvin S. Brice did not appear on said days, in person or by counsel, nor did he appear in person or by counsel on September 24.
    “ Relator admits the allegations in the third paragraph of said answer, of the filing of evidence by him with said defendant, September 24, and the continuance thereupon made by defendant, which he says was upon defendant’s own motion, to give opportunity, as pretended, to examine the evidence, and for said Brice to appear, although no such opportunity was requested by said Brice, or by counsel for him; and relator denies that said defendant objected to said evidence as insufficient, and declined and refused to proceed upon it; on the contrary, he says that, down to the obtaining from the county prosecuting attorney of the opinion mentioned in the petition, defendant frequently affirmed he had not examined the evidence, and continued so to affirm up to January 16, 1890; and relator denies offering to add commissions of his own to defendant’s commissions for performing his official duty in the premises, and denies the allegations of said third paragraph of the answer, that the proof being insufficient, no sums were assessed against said Calvin S. Brice, and the cause stood continued until October 2, 1889, for further action; but relator says that, in truth and in fact, defendant took no action but to make the continuance aforesaid to October 2, for the purpose expressed by him as above, that is, to enable him to examine the evidence and for said Brice to have an opportunity to appear, prior to which said alleged time for appearance, the injunction suit of said Brice, mentioned in the petition, was brought, and defendant would not proceed further; and relator denies each and every other allegation of said third paragraph of the answer not hereinbefore admitted.

      “ Relator denies withdrawing from defendant at any time the evidence submitted, except upon occasion of defendant’s representation that he was restrained from proceeding by injunction, and his request of relator to take charge of the evidence and submit it again when defendant would be free to examine it; and relator says that the evidence submitted to defendant before and up to January 16, 1890, and on which defendant refused to proceed because of the Richelderfer suit, was not withdrawn, although defendant desired plaintiff to do so, and remains with the defendant.
    “ Relator denies each and every allegation of ‘the seventh paragraph of said answer.
    “Relator denies that the continuance to January 16,1890, was by the consent and acquiescence of his attorney, and denies that his attorney was informed that relator would be expected to file his papers and evidence in time before January 16, 1890, for defendant to render findings on that day; on the contrary, relator says that said day was not fixed as the day of the findings to be made by defendant in the matter, but as the day for said Calvin S. Brice, agreeably to continuance, to appear.
    “ Relator denies the allegations of the eighth paragraph of said answer, that “ relator pressed the matter in December, 1889, at the time of the pendency of said canvass, for the sole purpose of using an undue pressure upon said Brice, and of compelling him to make a settlement he might not otherwise make, or be justified in making; ” but, on the other’ hand, relator says that defendant is well informed that the contrary is the fact, for relator says that, upon pressing defendant to issue said subpoena and obtaining response, as alleged in petition, of defendant’s not intending to embarrass Brice in his canvass, relator answered that such was not his intention either, but that he only wanted service upon Brice while within the state, and that after service he would be ready to defer the time for appearance until the senatorial canvass was through; and relator sa}^ his only reason for fixing December 26 as the day to which the subpoena was to be returned, was from observing in the newspapers that said Calvin S. Brice was expected to spend Christmas at his home in Lima, which seemed the only assurance to relator of service upon him.
    “ Wherefore relator prays as in the petition.”
    To this reply the defendant interposed a general demurrer, which the relator moved the court to strike from the files. The court overruled the motion, and the cause then came on to be heard upon the demurrer, which the court sustained and thereupon held that the relator was not entitled to a peremptory writ of mandamus and refused the same. To all which action of the court the relator excepted. Judgment having been rendered against the relator, he brought the cause to this court for review.

      Wm. L. Avery, Robb f Leete, and Boynton Hale, for plaintiff in error.
    Brief of William L. Avery.

    I. Mandamus may not issue to compel the doing of a specific thing that has been already enjoined. Ohio & Indiana R. R. Co. v. Commissioners of Wyandot County, 7 Ohio St. 278, 280. But the injunction obtained by Reichelderfer was not against the auditor’s subjecting omitted property to taxation. Reichelderfer did not pray for that. Nor was it against the relator’s furnishing facts and evidence to the auditor. There was no prayer whatever against relator; he was not made a party to the action. The order was simply against diverting, whether by allowance of the countjr commissioners, or warrant of the auditor, or payment by the treasurer, who were the only parties, any part of the taxes levied, or collected, to the making of compensation to relator. Vondercook v. Williams, 106 Ind. 345.
    II. To be entitled to the mandamus prayed, relator must have been beneficially interested. Revised Statutes, 6744. But wasn’t he ? He had a contract, at least the form of one. And it was pursuant to law, at least the form of law. 85 Ohio L. 170,171. Whether a good or bad law, at all events it was enacted by the legislature, and “ courts have no business to run a race of opinions upon points of right reason and expediency with the law-making power.” State Tax Taw Cases, 54 Mich. 350, 383.
    By section 4: “ This act shall not in any manner affect the provisions of sections 1343a and 1343b of the Revised Statutes of Ohio, as enacted April 20, 1885 (82 v. 152).” ■ Sections 1343a and 1343b, made applicable only to countiescomprising a city of the first class, or of the first grade of the second class, contain substantially the same provisions as in the body of the later act, except that the compensation is not limited to twenty per cent., and bond of the person employed is not required. If the question of constitutionality is to be raised here, under that much adjudicated clause, “ all laws of a general nature shall have a uniform operation throughout the state,” there are two obvious answers to the objection. The subject was a proper one for local legislation. Crickett v. State, 18 Ohio St. 9; State ex rel. v. Judges, 21 Ohio St. 1, 10, 11; State ex rel. v. Covington, 29 Ohio St. 102, 111; McGill v. State, 34 Ohio St. 228, 241, 246; State ex rel. v. Shearer, 46 Ohio St. 275. Or if not a proper subject for local legislation, then, for the same reason, the enactment of 1343 a and 1343 b was void, and uniform operation of the later act is at once secured. But was not local legislation proper ? “ Tax dodging ” may be general and therefore omission and mistake in tax returns be the subject of general laws: Revised Statutes, 2781, 2782 ; and yet, upon the subject of assisting the auditor to the discovery, local considerations may properly distinguish. If official indifference, locally developed by the surroundings, may not be taken to distinguish, although of this it would seem the legislature should be left to the judge, counties must at all events differ in wealth, and in the character of taxables, whether tangible or not, and, if not tangible, in the care required to prevent escape from taxation. For this it was competent in the legislature to authorize employment such as of the relator. The employment was for services to the county, the same in nature as any other service under employments authorized by law for the county. It was not for official service. It did not constitute, nor attempt to constitute, relator an officer of the county. Hoke v. Commonwealth, 79 Ky. 567, 574, 579, 580. Nor did it divert taxes levied from their object. If the service were a proper subject of contract by the county, payment would be no more a diversion than any other payment out of the county fund. Moreover, independently of the contract, relator has a beneficial interest — his interest as a taxpayer of the state. The same in kind, although differing in degree from what it would be if a taxpayer of the county. Nor is intervention of a public officer of the state required. State ex rel. v. Brown, 38 Ohio St. 344, 346; R. R. Co. v. Commissioners, etc., 12 Kas. 127.
    III. Two rules of construction are involved : “ That a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively.” Bernier v. Becker, 37 Ohio St. 72, 74; Allen v. Russell, 39 Ohio St. 336, 339. “ That the duty of courts is to construe statutes liberally, in order to save them from constitutional infirmities.” Gilpin v. Williams, 25 Ohio St. 283, 294. The latter rule is elsewhere expressed: “ It will never be presumed that the legislature intended to pass an unconstitutional law.” State v. Frame, 39 Ohio St. 399, 416.
    But this is a rule to be resorted to only in case of ambiguity. Sedgwick, Stat. and Const. Law, ch. 6, and ch. 7 (2d. ed.,) 194, 250, 266. It is not of universal application; for if it were, there could never be unconstitutional legislation, but all would be presumed constitutional. Story, J., 12 Peters, 76.
    Nor is the rule itself to be confounded with that other rule, for enforcing statutes “ so far as they are constitutionally made, rejecting only those provisions which show an excess of authority.” Cincinnati v. Bryson, 16 Ohio, 645; Adler v. Whitbeck, 44 Ohio St. 575; for that rule touches, merely, the operation permitted to the statute. This is illustrated by Gilpin v. Williams, 25 Ohio St. 283, already cited, and Nimmons v. Westfall, 33 Ohio St. 213.
    The admissibility of two interpretations of the language of a statute is a question, not of the mere words, but of the purpose of the legislation. It is of the words in connection with the subject-matter. Section 2781, Revised Statutes, was originally enacted May 11, 1878, 75 O. L. 456. The amended section was enacted April 14, 1886, 83 O. L. 82. Up to the original enactment of May 11, 1878, the act of March 29, 1861, was in force. S. & S. 759. The subject of all these was false return or statement in the listing by persons of property for taxation. From the earliest history of our state, it was a subject that had engaged the attention of the legislature. Acts, Feb. 27, 1816, see. 4, Chase, 986; Feb. 23, 1824, sec. 7, Chase, 1382; Feb. 3, 1825, sec. 28, Chase, 1476; March 14, 1831, sec. 15, Chase, 1804; Swan, 907. And see territorial act, Dec. 19, 1799, sec. 3, Chase, 272; and act Feb. 19, 1805, sec. 4, Chase, 470. As the industry of escaping taxation increased, change was made in the law between omissions in returns and refusals to make any returns, and only the latter were left to the assessor. It was then made the duty of the county auditor, upon his belief or information that any person had given to the assessor a false statement, or that the assessor had,omitted to return, or made an erroneous return, to correct the return and charge the person on the duplicate with the proper amount of taxes, to enable him to do which, he was invested with all the power of assessors. Acts, Feb. 8, 1847, 45 O. L. 60, see. 14; March 25, 1851, 49 O. L. 58, sec. 41 — inoperative; 2 Curw. R. S. 1624; April 13, 1852, Swan’s R. S. 901, sec. 46. And see, farther, act April 5, 1859, S. & C. 1438, sec. 34, and now 2782, R. S. That this applied as well to mistake as fraud, is held in Champaign Bank v. Smith, 7 Ohio St. 42, 49. But, with the change, although fifty per centum was left to be added in case of refusal, to list reported by the assessor, act March 2, 1846, 44 O. L. 98, sec. 39, and now 2784, R. S., no imposition of like kind was provided in case of false return or statement discovered by the auditor. • The act of March 29, 1861, S. & S. 759, was entitled “An act supplementary to the ‘ act for the assessment and taxation of all property in the state and for levying taxes thereon,’ ” etc.

      The act of May 11, 1878, sec. 48, 75 Ohio L. 456, being original section 2781, R. S., sec. 49, being now 2782, R. S., was the same in its recital of the conditions of the inquiry to be made by the auditor as the act of March 29, 1861, except that the precise words were “false return or statement.” Original section 2781, or section 48 of act, May 11, 1878, was construed in Sturges v. Carter, 114 U. S. 511; Lee v. Sturges, 46 Ohio St. 153.
    The legislation was of a character to be made retrospective, being curative. Wade Retr. Laws, secs. 250, 253; Endlich Interpret. Stat., sec. 291; Welty Assessments, sec. 230; U. S. v. Hodson, 10 Wall. 395, 406; New Orleans v. R. R., 35 La. Ann. 679, 684-685; County of Redwood v. Winona, etc., Land Co., 40 Minn. 512, 516; State ex rel. v. Raine, 24 Law Bull. 117; Flinn v. Parsons, 60 Ind. 573; State ex rel. v. Dombaugh, 20 Ohio St. 167, 174; Hubble v. Renick, 1 Ohio St. 171, 175; Bullock v. Horn, 44 Ohio St. 420, 424; State ex rel. v. Raine, 24 Law Bull. 114, 117; Wilber v. Paine, 1 Ohio, 251, 255; State v. Hipp, 38 Ohio St. 231; 23 Law Bull. 265; Endlich Interp. Stat., sec. 180; 24 Cal. 518, 554; 37 Wis. 400, 438, 439.
    IY. The statute is not penal, at least is not subject to the rule of strict construction applicable to penal statutes. U. S. v. Hodson, 10 Wall. 395, 406; Cornwall v. Todd, 38 Conn. 443, 447; and this notwithstanding the fifty per centum clause. U. S. v. Bbls. Spirits, 2 Abb. U. S. 305, 315; Ex parte Lynch, 16 So. Car. 32. It is still but for valuation for taxation. Fox's App., 112 Pa. St. 337, 357; Van Nort's App., 121 Pa. St. 118, 128; Cooley on Taxation, 2d. ed., 358; see also 2784 Revised Statutes. Nevertheless, the addition of fifty per centum is a discrimination and falls under the constitutional inhibition of retroactive legislation, unless to be distinguished as an increment of value that, but for failure to discover before the end of each of the past fiscal years, might have been added. If unconstitutional, however, the defect of the statute is but in that part. Cooley, Const. Lim. 178; Bowles v. State, 37 Ohio St. 35; State ex rel. v. Dombaugh, 20 Ohio St. 167, 174; R. R. v. Commis

      sioners, 31 Ohio St. 338, 343, 344; Gibbons v. Catholic Institute, 34 Ohio St. 289, 290; Adler v. Whitbeck, 44 Ohio St. 539, 575; Cooley, Const. Lim. 181; Commonwealth v. Kimball, 24 Pick. 362; Cooley Const. Lim. 178; Bishop Writ. Law, sec. 34; People v. Kenney, 96 N. Y. 294; State v. Frame, 39 Ohio St. 411, 412; People v. Bull, 46 N. Y. 57, 68; Lathrop v. Mills, 19 Cal. 513, 530; Allen v. Louisiana, 103 U. S. 80, 84; 22 Law Bull. 111; 23 Law Bull. 265; People ex rel. v. Kenney, 96 N. Y. 294; Warren v. Charlestown, 2 Gray, 84; Jones v. Town of Bridgeport, 36 Conn. 283; Ratterman v. Western Union Tel. Co., 127 U. S. 411; State Freight Tax, 15 Wall. 232; Supervisors v. Stanley, 105 U. S. 312, 313, 315; County of Redwood v. Winona, etc., Land Co., 40 Minn. 512; State v. Mayor of Jersey City, 37 N. J. Law, 39; Hoke v. Commonwealth, 79 Ky. 567.
    Y. In either view of the amended section 2781, contended for by defendant in error, whether as retrospective and wholly void, or as prospective only, the question must arise of the repealing clause. One branch of the question will be shortened by referring to the contention just discussed. For if the amendment is to be altogether void for that it would not have been enacted but for the penalty, then equally the repealing clause is to be void for that it would not have been enacted but for the amendment. The proposition that if a legislative enactment be wholly void its repealing clause must fall with it, would seem to be self-evident. Nor will the cases be found to differ, except as distinguished by separability of legislation. This distinction accounts for what is sometimes written of the difference between an express repeal and one merely implied, or which, in terms, is but the repeal of inconsistent legislation. Cooley, Const. Lim., 3d ed., 186. For it is only as conclusive of legislative intention not to sustain the repeal independently that the latter differs from the former. But the question is open upon the former. Gibbons v. Catholic Institute, 34 Ohio St. 289, 290; Bishop, Writ. L., sec. 34; State ex rel. v. Hallock, 14 Nev. 202; Black v. Tower, 79 Va. 123; State ex rel. v. Blend, 121 Ind. 514; O'Brien v. Krenz, 36 Minn. 136; Nolan's Case,
      122 Mass. 330, 333; State ex rel. v. Rabbitts, 46 Ohio St. 178, 181; Railroad Co. v. Belt, 35 Ohio St. 479, 481; Lafferty v. Shinn, 38 Ohio St. 46, 49; O’Donnell v. Downing, 43 Ohio St. 62; Commissioners of Union County v. Green, 40 Ohio St. 318; Cincinnati v. Seasongood, 46 Ohio St. 306; Champaign County Bank v. Smith, 7 Ohio St. 42; Genin’s Ex'r v. Auditor, etc., 18 Ohio St. 534.
    VI. The technical rule at common law would seem to have confined the issue of the peremptory writ of mandamus to what was demanded by the alternative writ refusing it either for more or less. Dane v. Derby, 54 Me. 95; High Ex. Leg. Rem., sec. 548; State ex rel. v. Kansas City, etc., R. R., 77 Mo. 143. But, with deference, this was a strictness not referable to rules of pleading. It was but a rule of practice. King v. Mayor, etc., 4 Term R. 689; King v. Church Trustees of St. Pancras, 3 A. & E. 535; 5 Nev. & Man. 219; Queen v. Tithe Comm’rs, 14 Q. B. 489; Queen v. E. & W. Ind. Docks, etc., 2 El. & Bl. 466; People ex rel. v. Dutchess, etc., R. R. Co., 58 N. Y. 152, 159; Dillon on Municipal Corporations; see. 879 (3d ed.) ; Heard’s Shortt on Ex. Rem., 422-423.
    But obviously a practice for which the only reason assigned is want of power in the court to mould the writ, and which must result in any event only in a rule for a new writ, can have no place under a system of procedure so plastic as our code. State ex rel. v. Commissioners, etc., 5 Ohio St. 497, 502.
    But this was with respect only to the character of the proceedings as in the name of the state. The same court had already, in Johnes v. Auditor, 4 Ohio St. 493, allowed the writ to be amended; Fornoff et al. v. Nash, 23 Ohio St. 335; State ex rel. v. Hawes, 43 Ohio St. 16; Ohio ex rel. v. Board of Public Works, 36 Ohio St. 409; Ross v. Bd. of Education, 42 Ohio St. 374, 379; State ex rel. v. Baggett, 96 Mo. 63; State ex rel. v. Currie, Auditor, etc., 39 Minn. 426, 429; Hosier, Relator, v. Township Board, 45 Mich. 340, 342
    The case was also argued orally by W. W. Boynton.

      J. B. Poraker, also, argued the case orally on behalf of the plaintiff in error.

      I. 8. Motter, Prosecuting Attorney, and M. 8. Prophet, for defendant in error.
    Brief of JI. 8. Prophet.

    The Circuit Court took the correct view of the question when it held that the fair construction of section 6748 is, that if the writ has been allowed by the court, the defendant must answer, because in that case the court has passed upon the sufficiency of the petition ; but where a judge allows the writ the court has not passed upon the sufficiency of the pleadings. It makes no difference that more than one judge signed the order granting the writ; such signing does not make the order granting the writ the act of the court. In this case the writ was not allowed by the court. The people v. Ransom, 2 N. Y. 490; The Commercial Bank of Albany v. Canal Commissioners, 10 Wendall, 25; The King v. The Margate Pier Company, 3 Barn, and Ald., 221; The State ex rel. Coppel v. Milwaukee Chamber of Commerce et al., 47 Wisconsin Rep. 670; State ex rel. Clothsom v. Lean, 9 Wis. 279; State ex rel. Burns v. Supervisors, etc., 39 Wis. 169; Babb v. Mackey, 10 Wis. 371; Ferson v. Drew, 19 Wis. 225; People v. Baker, 35 Barker R. 105; Moses on Mandamus, 209.
    I. We claim that the act of April 4, 1886, under which the auditor was commanded to act or show cause why he did not so act, is in conflict with section 28, article II. of the Constitution of Ohio, which provides, among other things, “ that the general assembly shall have no power to pass retroactive laws.” Society for the Propagation of the Gospel v. Wheeler, 2 Gallison (N. H.,) 105; Rairden and Burnett v. Holden, Admr., etc., 15 Ohio St. 210; Dow v. Norris, 4 N. H. 16; Clark v. Clark, 10 N. H. 380; Greenlaw v. Greenlaw, 12 N. H. 200; Kennett’s Petition, 4 Fosters R. 139; Colden v. Bull, 3 Doll R. 397; Blackstone, vol. 1, page 46; Walker on American Law, 212-14; Barruff v. Remey, 15 Iowa, 257; McCowan v. Davidson, 43 Geo. 480; Woart v. Winnick, 3 N. H. —; Dow v. Norris, 4 N. H. 16; The State, Dixon, pros.
      v. The Mayor etc. of Jersey City, 8 Vroom, 39; Hoke v. Commissioners, 79 Ky. 567, on page 581; The People ex rel. v. The Board of Supervisors, 63 Barber S. C. R. 83; Hart v. State, 40 Ala. 32; State v. Bradford, 36 Geo. 422; Chancey v. State, 31 Ala. 342; The Steamboat-Farrier v. McCraer, 31 Ala. 659; Mochlan Township Road, 30 Penn. St. 156; State ex rel. v. Rabbitts, 46 Ohio St. 178.
    But we concede that the weight of authority is that statutes are generally not within the inhibition when they are purely remedial, unless limited by statutory inhibition. They are not purely remedial if they seek to take away or impair any vested rights acquired under existing laws, or create a new obligation, or impose a new duty, or attach a new disability, -in respect to transactions or considerations already past. The Ohio cases bearing on this point, are the following : Rairden v. Holden, 15 Ohio St. 207; Trustees of Greene Tp. v. Campbell, 16 Ohio St. 16; Templeton v. Kramer, 24 Ohio St. 563; Railroad Co. v. Comm’rs, 31 Ohio St. 345; Peters v. McWilliams, 36 Ohio St. 162; Goshorn v. Purcell, 11 Ohio St. 641; Westerman v. Neal, 25 Ohio St. 500; John v. Bridgman, 27 Ohio St. 22; Kelly v. Kelly, 5 Ohio St. 198; Miller v. Graham, 17 Ohio St. 1; Lawrence R. Co. v. Connors, 35 Ohio St. 1; Burgett v. Norris, 25 Ohio St. 308; Seeley v. Thomas, Auditor, 31 Ohio St. 301.
    . II. As to the separation of the constitutional from the unconstitutional part, Cooley on Constitutional Limitations, 212-214, second edition. Warren v. Mayor, etc., of Charleston, 2 Gray, 84; State v. Commissioners of Perry County, 5 Ohio St. 497; Slauson v. Raine, 13 Wis. 398; Commissioners v. Silvers, 22 Ind. 491; Eckhart v. State, 5 W. V. 515; Allen v. Louisiana, 103 U. S. 80; Tillman v. Coche, 9 Bax. 429; Bishop on Written Laws, section 34; Neely v. The State, 4 Baxter, 174; The State v. Dausman, 28 Wis. 541; Eckhart v. The State, 5 W. Va. 515; Warren v. Charlestown, 2 Gray, 84; Commonwealth v. Clopp, 5 Gray, 97; Commonwealth v. Hutchings, 15 Gray, 482; Commonwealth v. Pomeroy, 5 Gray, 486; The State v. Hipp, 38 Ohio St. 230; State v. Sinks, 42 Ohio St. 350-352; The State v. Pugh, 43 Ohio St. 124; Dag

      gett v. Hudson, 43 Ohio St. 567; Darby v. City of Wilmington, 76 N. C. 133; Attorney General v. City of Detroit, 7 L. R. A. 99-105.
    This law being in the respect pointed out, both unreasonable and in conflict with the constitution, and it being apparent that the legislature would not have enacted the other portion of the act had it foreseen that the court would declare these parts unconstitutional, the whole act must fall, and be held unconstitutional and void. Dells v. Kennedy, 49 Wis. 560; 1 West. Rep. 789; Brooks v. Hydron, (Mich.) 42; N. W. Rep. 1122; Slausen v. City of Racine, 13 Wis. 398; State, ex rel., v. Donnivan, 28 Wis. 541; Slings v. Hennaman, 38 Wis. 504.
    III. In mandamus the peremptory writ cannot be awarded in any other form than that fixed by the alternative writ. High Ex. Leg. Rem., sec. 538; Hawkins v. Moore, 3 Ark. 345; People v. Brooks, 57 Ill. 142; Short on Informations, Mandamus, etc., page 436; R. v. St. Pancras, 3 A. and E. 542, 543; R. v. London, 132 B. 1, 41; R. v. Leicester, 7 D. and R. 373 ; High on Ex. Leg'. Rem., sec. 541; Tapping on Mandamus, 305, 402; Moses on Mandamus, 223; Comyn’s Digest, title, Mandamus, a,; Redfield on Railways, vol. 1, page 649; High, Ext. Leg. Rem., sec. 548; Queen v. East and West India Docks, etc. R. Co., 2 El. and Bl. 466; Chance v. Temple, 1 Iowa, 179; Price v. Harned, Ib. 473; State v. County Judge of Johnson Co., 12 Iowa, 237; Queen v. Caledonian R. Co., 16 Ad. & E. N. S. 19; Dane v. Derby, 54 Maine, 95; The People etc. v. The Dutchess etc. R. Co., 58 N. Y. 160; The State, ex rel., v. Commissioners, etc., 5 Ohio St, 497-502; Johnes v. The Auditor of State, 4 Ohio St. 493-4; The State, ex rel., Otenberger v. Hawes, 43 Ohio St. 16-31; Farnoff, et al., v. Nash, 23 Ohio St. 335. But I claim the circuit court had no legal right, under the rules of the code, to amend the writ, excepting by the request or leave of the relator. The Code, section 5114.
    Amendments are discretionary with the court. See Kemper v. Trustee etc., 17 Ohio 293, 329; Tilton v. Margaridge, 12 Ohio St. 98; Clark v. Clark, 20 Ohio St. 128, 135; Bo

      bo v. Richmond, 25 Ohio St. 115, 122; Brock v. Bateman, Ib. 609.

      Selwyn N. Owen, of Powell, Owen, Bicketts Black, counsel for parties concerned in some of the questions contended for herein by defendant in error,
    also argued the case orally.
   Bradbury, J.

The greater part of the several pleadings of fact in the case before us is devoted to detailing a history of the proceeding had before the county auditor and in the Court of Common Pleas of Allen county, to prevent or delay the action of that officer; most of which is immaterial to the questions at issue. Disregarding all this, the petition, nevertheless, shows that the relator is a resident citizen and taxpayer of the state of Ohio, and had been employed by the proper authorities of Allen county, of this state, to furnish facts and evidence to the auditor of the county sufficient to authorize that officer to place upon the tax duplicate of said county, property subject to taxation that had been improperly omitted therefrom ; that the defendant was the auditor of said county; that on August 10, 1888, the then county auditor of said county issued a notice to Calvin S. Brice that error had been discovered by relator in the tax returns of said Brice, in said county, and requiring him to appear on the 28th day of said month and show cause why the same should not be corrected; that said Brice did not appear pursuant to the notice, and the matter was continued without further action until September 3, 1889, at which date the defendant, who had become auditor of the county, issued at relator’s instance, a second notice, which recited the first one, fixing September 16,1889, for Brice to appear and show cause why his tax returns in said county should not be corrected, and stating that in default of his so doing the said auditor, from the facts and evidence furnished by the relator, would proceed to place against said Brice, on the tax duplicate of said county, the amounts found to have been omitted; that Brice did not appear on that day or on any other day to which the matter was, from time to time, continued; that on January 16, 1890, a day to which the matter had been continuecl, Brice failing to appear, “ and the facts and evidence being before said defendant, as county auditor, of the holding by Brice, in each of said years from 1889 back to 1884, of personal property, investment in bonds, stocks, etc., subject to taxation in said county, and not returned by or for him for taxation, to the amount in some of said years, of more than $2,000,000, .not including penalties, the relator demanded that the true amount thereof, as nearly as it was practicable to ascertain, be entered by the defendant upon the tax list of said county against said Calvin S. Brice,” and that said defendant refused and still refuses to proceed or act in the matter.

The answer interposed by the defendant consists mainly of a recital of the various causes of delay, and exhibits quite as clearly as the petition itself, the obstacles and difficulties encountered by the relator, and his final failure to secure an examination of the evidence he had furnished to the defendant under his contract; but it sets forth no sufficient grounds for a refusal to proceed with the enquiry.

The reply consists, mainly, of either denials or explanations of the averments of the answer, but, as the answer does not contain facts sufficient to constitute a defense to the petition, the reply may be regarded as wholly immaterial.

To this reply the defendant interposed a general demurrer which he contends searches the record and brings in issue the sufficiency of the petition.

In the case before us the alternative writ was allowed by the three judges of the circuit court. On the day fixed by the court for the defendant to show cause why a peremptory writ should not issue he filed his answer; on the same day the relator filed a reply to this answer, and on the day following a demurrer to the reply was interposed.

The sections of the statute prescribing the procedure in mandamus are as follows:

“ Section 6748. On the return day of an alternative writ, or such further day as the court may allow, the defendant may answer as in a civil action; or, if the writ be allowed by a single judge, he may demur.”
“ Section 6749. The plaintiff may demur to the answer, or reply to any new matter therein; and the defendant may demur to the reply as in a civil action.”

It will be observed that the order of pleading prescribed by the statute was strictly pursued by the parties in the circuit court.

Section 6751, Revised Statutes, provides that “the pleadings (in mandamus) shall have the same effect, and must be construed, and may be amended, as in civil actions.” A demurrer is a pleading (section 5059 Revised Statutes) and, by section 6751, is to have the same effect in mandamus as in civil actions. Its effect in civil actions is to search the record. Headington v. Neff,, 7 Ohio (pt. 1) 229; Trott v. Sarchett, 10 Ohio St. 241; Hillier v. Stewart, 26 Ohio St. 652; 1 Samuel, 119, n. 7. The demurrer to the reply in the case at bar must therefore be held to search the record and put in issue the sufficiency of the petition. Indeed it is difficult to see in any case, whether mandamus or other relief is sought, how the plaintiff can recover, or be granted relief, where his petition does not state facts showing his right to it. In such case the foundation on which the relief should be based is wanting, and none can be awarded, without violating the principles that underlie the whole system of pleading, as recognized in our jurisprudence.

The sufficiency of the petition is denied:

1. Because it does not disclose an interest in the relator sufficient to entitle him to the writ.

2. The defendant is restrained by injunction.

3. It does not state the nature of the facts submitted to the defendant, upon which he was required to act.

4. That the statute, 83 O. L. 82, under which the action of the defendant was invoked, is unconstitutional.

The construction and constitutionality of that statute, 83 Ohio Laws, 82, has been determined in the case of Byron Gager, Treasurer of Erie County, v. A. W. Prout and Perry G. Walker, ex'rs., etc., considered and decided contemporaneously with this case, and will not be discussed in this opinion.

1. The interest of the relator.

The petition declares that the relator is a resident taxpayer of the state, and as such has an interest, in common with all other tax-payers, in having all property, subject to taxation, placed upon the tax duplicate; he also had a special interest arising out of his contract. This contract provides that 20 per cent of the amount he secures to the public is to be paid to him for his services in furnishing evidence to the auditor by which property improperly omitted is added to the tax duplicate. This contract is claimed to divert the public funds from their proper objects and is, therefore, illegal. This claim is not well founded; the contract violates no statute of the state; on the contrary it is a contract expressly authorized by an act of the legislature, (85 Ohio Laws, 170,) passed in 1888, “To secure fuller and better returns of property for taxation.....” Nor is it a diversion of the public funds, but is rather a mode of compensating services actually performed for the public, and, to quicken the energies of the servant, this compensation is made to depend on the efficiency of his services.

To hold that the constitution prohibits the legislature to authorize the officers of the state or county to employ persons to assist in adding to the tax duplicate, property unlawfully omitted therefrom, is entirely too narrow a construction of that instrument. The statute (85 Ohio Laws, 170,) must be regarded as part of the general plan by which the constitutional rule, that all property subject to taxation is to be equally taxed, may be enforced, and therefore all contracts made in accordance with its provisions legal and valid.

2. The effect of the Reichelderfer injunction is next to be considered. The relator in his petition set forth the proceedings in this action, by filing a copy of the petition and restraining order as an exhibit. • An examination of the petition in the action begun by Reichelderfer, shows that he sought to have the contract between the relator and the authorities of Allen county, (by which relator was to furnish evidence of property improperly omitted from the tax duplicate of the county), declared illegal and void, and the injunotion was to restrain proceedings under that contract until the final hearing of the case. This injunction did not purport to restrain the defendant from proceeding to discharge his duty of restoring to the tax duplicate property improperly omitted therefrom, and, therefore, constituted no excuse for his refusal to proceed on the evidence already furnished by relator; for that evidence was equally convincing, and it was as much the defendant’s duty to examine it, if it was furnished under an illegal contract, as if the contract was valid; his duty to act, resting upon the fact that he had before him information, in its nature requiring him to do so, rather than upon the manner in which it had come to his knowledge.

3. It is also claimed that the petition is defective in omitting to state facts necessary to show that Mr. Brice had made a false return. The proceedings before the auditor were to place, upon the tax duplicate of Allen county, “ any personal property, moneys, credits, investments in bonds, stocks or otherwise, owned by Calvin S. Brice, in any of said year or years, subject to taxation in said county,” and not returned for that purpose. The petition does not aver that Brice was a resident of that county, or even of the state of Ohio, nor does it give a statement of the evidence and facts submitted by the relator to the defendant, which it is claimed would establish the false returns.

It should be remembered in this connection, however, that the case before the court is not directly against Mr. Brice, nor is it to require the court to perform the duties of a county auditor; this court is not asked to examine the evidence laid before that officer, and, if found sufficient, to immediately adjudge that the omitted property be added to the duplicate; the case, on the contrary, is against the auditor, to compel him to perform a duty enjoined upon him by law, and the petition is sufficient in this respect if it shows him to be in default. His duties, in respect of property improperly omitted from the tax duplicate, are prescribed by sections 2781 and 2782, Revised Statutes. By these sections he is required to proceed to inquire into the matter “ if he shall have reason to believe, or be informed,” that false or incorrect returns have been made by any person. These sections (2781 and 2782, Revised Statutes), impose an active duty upon a county auditor in this matter of omitted taxes. The policy of the law is that all property shall share equally the burden of taxation. The auditor of a county is its financial officer; his duties are not merely to sit and investigate cases of alleged omissions brought before him by others. Though clothed with quasi judicial powers in these matters, yet he is an administrative officer, too, and is required to act upon information, and it is immaterial how the information is received, whether by accident, by his own exertions, or is furnished by a tax inquisitor, employed by virtue of the statute (85 Ohio Laws, 170). The averment of the petition in this respect is as follows : “ facts and evidence being before said defendant, as county auditor, of the holdings by Brice, in each of said years, from 1889 back to 1884, of personal property, investments in bonds, stocks, etc., subject to taxation in said county, and not returned by or for him for taxation, to the amount, in some of said years, of more than $2,000,000, not including penalties, the relator demanded of said defendant that the time amounts thereof, as nearly as it was practicable to ascertain, be entered by defendant upon the tax lists of said county, against said Calvin S. Brice.”

This averment is indefinite respecting the nature of the evidence laid before the defendant to invoke his action, and is vague and unsatisfactory in other respects; no motion, however, was interposed to make the petition more definite and certain, and the controversy, therefore, is over its sufficiency as against a general demurrer. The averment is that the defendant had before him “ facts and evidence,” . . . . “ of the holding by Brice,” in each of the years named, of large amounts of property subject to taxation in Allen county, and not returned by him for that purpose. A fair construction of this language is that the defendant had facts and evidence before him showing that Brice had held in each of those years, property subject to taxation, which he had not returned for that purpose.

If this was so, it clearly follows, from the principles hereinbefore announced, respecting the duties of county auditors, in such cases, that the defendant should have proceeded in good faith to investigate the matter. No doubt the duty is one of delicacy, and calls for the exercise of a conservative judgment, and sound discretion. The great power vested in county auditors by the statute, is liable to cause hardship and oppression, if exercised recklessly or wantonly, but that affords no just ground for a refusal to act in a proper case. Nor should a county auditor decline to discharge this grave and important duty to the public, on the plea that it might cause individual annoyance ; this is the frequent result of a firm and impartial performance of public duties.

4. The earlier doctrine in mandamus was that the peremptory writ should strictly follow the alternative one; that rule in all its strictness is still followed in many of the more modem cases.

“ A peremptory mandamus cannot be limited, but must be in exact accordance with the writ upon which it is founded .....” Tapping on Mandamus, sec. 402. “ Before we can grant a peremptory mandamus, the prosecutor is bound to’ satisfy us that there is a legal duty imposed upon the defendant to comply with all that is commanded in the (alternative) writ.” Campbell, C. J., in Regina v. Railway Co., 16 A. & E. N. S. 30; Iowa, ex rel., Dox v. The County Judge of Johnson Co., et al., 12 Iowa, 237; 14 Am. & Eng. Ency. of Law, 214.

Valid reasons for this rigid rule are not at all apparent. The remedy by mandamus is to enforce civil rights, and why the proceedings therein should not be as elastic as in civil actions has not been satisfactorily answered by the cases that adhere to the rule. In civil actions no one would be heard to contend at this late day, that, because the plaintiff had claimed more than, upon the trial, he could maintain, it would be fatal to his right to recover that to which he was entitled upon the facts and the law as they appeared upon the trial.

In mandamus is it so much less difficult for a party to determine, in advance, the exact measure of his rights, that if be makes a mistake in that regard, by claiming more than he can maintain upon the trial, he is to be sent out of court, mulct in costs, and compelled to begin de novo ? If he claims less than his right, no more than is claimed will be awarded him. If the rule should be maintained in all its strictness, the remedy of mandamus will be a perilous one to invoke in cases where more than a single act or right is sought to be enforced. If less than his full right is claimed by a party, he will not recover that not claimed, but must encounter the delay of another proceeding, and the hazard of a plea of res adjudicada, in respect of it; while, if he claims too much, he will be denied any relief whatever, however clearly his title may appear to a large part of his demand.

In many cases courts have sought to escape from the extreme severity of the rule; in some instances by holding the difference between the two writs to consist of immaterial matters of detail, while in others an amendment of the alternative writ was allowed, making it conform to the peremptory writ. State v. Board of Aldermen, 1 S. Car. 30; State v. Weld, 39 Minn. 426; State v. Baggott, 96 Mo. 63; Dillon on Municipal Corporations, sec. 879 (3d ed.)

Under the act of 1854 (S. & C. 1124 to 1128), this court held that the alternative writ could be amended. Johnes v. The Auditor of State, 4 Ohio St. 493; Fornoff et al. v. Nash, 23 Ohio St. 335.

As the act of 1854, (S. & C. 1126 sec. 571), then in force, commanded, in express terms, that the peremptory writ should follow the alternative writ, if the relief finally granted vaiied from that mentioned in the alternative writ, it was imperative that the alternative writ should be first amended, otherwise the peremptory writ could not follow it.

The act of 1854 not only provided (S. & C. 1127, sec. 571), that the peremptory writ should folloAv the alternative one, but also provided (S. & C. 1127, sec. 577), that “no other pleadings, or written allegation is allowed, than the writ and answer.” All this was changed by the revision in 1878. The provision of the act of 1854, supra, commanding the peremptory writ to follow the alternative one, was not retained in the revision of 1878. Other changes were also introduced respecting the practice in proceedings in mandamus by the revised code. Sections 6748 and 6749, Revised Statutes, permits the same pleadings in mandamus as in civil actions; section 6751 provides that, “The pleadings shall have the same effect, and must be construed, and may be amended as in civil actions,” while section 6752 provides that “Issues of fact made by the pleadings must be tried, and the further proceedings thereon had, in the same manner as in civil actions.” These changes are significant. The pleadings, their construction and amendment, the mode of trial and other proceedings in mandamus, are all declared by statute to be “ the same ” * * * “ as in civil actions.” In view of these express provisions of the statute, it is difficult to see wherein a proceeding in mandamus differs in any material respect from a civil action, or even in any respect, except in name.

Treating the petition and the alternative writ based upon it, as the foundation of the relator’s claims, bearing the same relation to the proceedings in mandamus that the petition does to the proceedings in a civil action, and it is clear he is entitled to no relief beyond that which the petition and alternative writ show him entitled to, and if he wishes other relief he must, as in civil action, set forth by an amendment the facts that establish his right to it; but where, upon the trial, he is able to establish by proof, or maintain in law, his title to a part only of the relief sought, there seems, now, to be no reason for refusing to grant so much thereof as under the facts and law he is entitled to, without first amending the alternative writ. The alternative writ, it is true, has commanded him to do all the acts enumerated in it, or show cause for his refusal; but if he has only shown a legal excuse for not doing one of them, it would seem, in the nature of things, to be no defense for omitting to do the others, unless there is such dependence between them that all should stand or fall together.

This principle was recognized by this court in Ohio v. Board of Public Works, 36 Ohio St. 409, where the petition and the alternative writ founded on it was for the payment of a sum of money and interest; but upon the final hearing this court denied the relator’s demand for interest, and granted a peremptory writ for the principal only. Ross v. Board of Education, 42 Ohio St. 379.

In the case at bar the alternative writ commanded the defendant to proceed upon the evidence placed before him by the- relator in the matter of the returns of Calvin S. Brice for taxation, for the five years running back from 1889, and restore any of his property found to have been omitted in any of said years, and charge the rate of taxes thereon provided by the statute. The statute (83 Ohio Law, 82) required him when he had restored the omitted property, to add fifty per centum to the amount thus restored, so that he was in effect commanded to add the fifty per centum, to the amount restored to the tax duplicate for each of the five years prior to the year 1889. The fifty per centum thus to be added being a penalty, was, so far as the statute (83 Ohio Law, 82) was retroactive, in violation of the constitution of the state, and has been declared so in the case of Byron Gager v. A. W. Prout et al., supra, decided at the present term of this court. According to the rule laid down in that case the command to the defendant should have been that he proceed to inquire into the matter for the five years running back from 1889, but that the penalty for the years 1884 and 1885 should not be added to the amount restored. A peremptory writ commanding that to be done, would only have differed from the alternative one in omitting to require the fifty per centum to be added in 1884 and 1885, to any amount that might have been restored to the duplicate under the writ for those years; this departure from the terms of. the alternative writ was permissible under the present statute regulating the practice in mandamus, and the peremptory writ should have been awarded accordingly. Writ awarded.