recognizing that “the written protest and notice of intention to sue provisions of R.C. 2723.03 are mandatory and must be strictly adhered to if an action for the recovery of allegedly wrongfully collected taxes is to be maintained”
How later courts described this case
- recognizing that “the written protest and notice of intention to sue provisions of R.C. 2723.03 are mandatory and must be strictly adhered to if an action for the recovery of allegedly wrongfully collected taxes is to be maintained”
- “R.C. 2723.01 et seq. provide the exclusive means by which a taxpayer may, with the approbation of the court, demand that the county auditor refund erroneously collected taxes.”
Written by the judges who cited it.
The opinion
Clifford F. Brown, J.,
dissenting. Because I do not believe that R.C. Chapter 2723 is applicable to the present action, I dissent.
The majority holds that failure to comply with the procedural requirements of R.C. 2723.01 et seq. bar an action brought under that chapter. While I might accept this premise, I find it inapplicable to the instant case since appellant did not bring his action pursuant to R.C. Chapter 2723, but rather based his claim for a refund of taxes under R.C. 319.36.
The majority’s holding that R.C. 2723.01 et seq. provide the “exclusive means” by which a taxpayer may demand a refund of erroneously collected *368 taxes seriously undermines the legislative intent of both R.C. Chapter 2721 and R.C. 319.36.
First, a plaintiff proceeding under the Declaratory Judgments Act need not plead or prove a right to recover under some other statutory cause of action in order to prosecute an R.C. Chapter 2721 action. Such an action is an alternative to other remedies (Civ. R. 57) and jurisdiction exists “whether or not further relief is or could be claimed.” (R.C. 2721.02.) Simply because the one-year statute of limitations contained in R.C. 2723.01 is a defense to an action brought under that chapter cannot mean that failure to adhere to that provision when alleging an error redressable under R.C. 319.36 extends the subject matter jurisdiction of the court in a declaratory judgment action. Appellant’s prayer for relief involved only R.C. 319.36 and therefore, the conditions, requirements and limitations of R.C. 2723.01 et seq. were not applicable.
Second, the majority mischaracterizes R.C. 319.36 as a “discretionary, essentially administrative remedy.” R.C. 319.36 was designed to provide redress for taxpayers overcharged through clerical errors. 7 8Indeed, R.C. 319.36 and its predecessors have traditionally been interpreted as affording wronged taxpayers exactly the type of relief which they request today. See State, ex rel. Poe, v. Raine (1890), 47 Ohio St. 447 ; Christ v. Eirich (C.P. 1912), 13 Ohio N.P. (N.S.) 457. Thus, appellant’s claim for return of erroneously assessed and collected taxes was properly cognizable under R.C. 319.36.
By infusing the procedural requirements of R.C. Chapter 2723 into R.C. Chapter 2721, the majority has erroneously commingled two distinct statutory paths. Such an amalgamation not only effectively nullifies the Declaratory Judgments Act but also lets stand uncorrected a mode of operation which was characterized by both lower courts as an “obvious failure” by the county auditor to correctly compute the taxable acreage of forty-two thousand taxpayers as mandated by R.C. 5713.04. 8 The result of this court’s holding that R.C. 2723.01 et seq. provide the exclusive means by which a taxpayer may demand a refund of erroneously collected taxes is that even though a county auditor disregards a tax computation mandated by the *369 statutes and overcharges a taxpayer and the taxpayer discovers the error within the five-year period of R.C. 319.37 and requests a refund of his overpayment, the county auditor himself remains the only person who may set in motion the procedure which would lead to rectifying his mistake. Such a restrictive interpretation of R.C. 319.36 allows the county auditor to perpetuate his error and does much to insulate him from taxpayers’ actions.
I would reverse the judgment of the court of appeals.
That the auditor’s selection of the wrong acreage figure was a “clerical error” is supported by prior case law which explored the distinction between “clerical” and “fundamental” error. See, e.g., State, ex rel. Poe, v. Raine, supra, and Insurance Co. v. Cappellar (1883), 38 Ohio St. 560 . See, also, 51 Ohio Jurisprudence 2d 434, Taxation, Section 347. All that was necessary to correct the error alleged in the complaint was a simple clerical subtraction, as required by R.C. 5713.04. In view of the fact that the county auditor had available to him all the information necessary to clerically correct the error made when he assessed tax on land occupied by public highways, the error must be deemed a “clerical error” redressable under R.C. 319.36.
R.C. 5713.04 reads in pertinent part as follows:
“The county auditor shall deduct from the value of each separate parcel of real property the amount of land occupied and used * * * as a public highway at the time of such assessment.” (Emphasis added.)