The plaintiff in error claims that tbe court of common pleas erred in overruling a demurrer filed by him to the petition of the plaintiff below, and in sustaining a demurrer of plaintiff below to an answer filed by the defendant below, and in rendering a judgment against him on the pleadings, such as was entered.
The original action was one of mandamus, brought against Mr. Hagerty as the auditor of this county, by the state of Ohio, on the relation of the gas company. The petition was filed June 6, 1896, and its material allegations, so far as it is necessary to state them, are in substance these:
It avers that it is a corporation, and that for many years before the filing of the petition, and at that time, it has had moneys and credits which it has listed as required by law for taxation, together with all such real estate as has been, and is necessary to the daily operations of the company, and that defendant is the county auditor of this county. That as required by law, it listed and returned for taxation on June 9, 1891, such real estate, at the same valuation as had been returned by the company for the four years preceding 1893 ; but which values were far in excess of the true and proper values as finally fixed and reported to said auditor late in the year 1891, by the board of review) and the county board of equalization, sitting as the decennial city and county boards of equalization respectively. That the valuation placed on said real estate, for taxation by the relator in its said return, was as follows:
In Cincinnati........ $1,034,504 00
In Avondale........................... ...... 31,110 00
In Carthage........... 43,460 00
Total...... §1,109,074 00
And the valuation placed thereon by such boards, was as follows:
In Cincinnati........ $758,610 00
In Avondale..... 5,640 00
In Carthage...... 27,800 00
Total,....... $792,050 00
Reduction.....$317,024 00
It is further averred that the relator caused a statement in writing to be prepared setting out these facts, and making it appear that it had valued its real estate (in Cincinnati) at $1,034,504, and that the said boards had that year, fixed the aggregate at $758,610, making an erroneous charge on the county duplicate of $275,890, and wherein it was made to appear, and claimed that the company had paid in taxes upon the amount so erroneously charged, $7,835.27. That this statement and claim was presented to said auditor February 1893, and he was requested to call the attention of the county commissioners thereto, at any regular or special session thereof. That the said auditor, not disputing, but admitting their correctness, refused and still refuses to do so, or otherwise to correct the errors upon the duplicate.
*90The petition further averred that said relator company returned for taxation in 1892, real estate, erroneously valued by it at $809,970; but which the board of review returned to the county auditor at a valuation of $756,710, making thereby an improper and erroneous charge on the duplicate of that year, of $53,260 on which the company erroneously overpaid in taxes $1,459.32.
That for the year 1893, the company returned real estate for taxation, erroneously valued by it in its return at $758,260, whereas the true and proper valuation thereof as fixed by the board of supervisors (the successor of the board of review) and reported to the county auditor, was only $757,210, making thereby an erroneous charge on the duplicate of $1,050 on which the company erroneously paid taxes in the sum of $28.60.
And in the same manner there is an allegation of an overcharge and payment of taxes for 1894 of $15.29.
And that in 1895, the relator returned real estate valued at $877,720, which by the board of supervisors was valued at $810,090 and returned to the auditor, thereby reducing it to the sum of $66,830, on which the company erroneously paid the one-half of the taxes due thereon December 20, 1895, the sum of $940.29 and now, (at the filing of the petition) stands charged erroneously with the other half, due June 20, 1896, viz.: $940.29, and said duplicate is now in the hands of the treasurer of the county for collection.
That in March 1896, it caused to be prepared a statement in writing setting forth these facts in detail for the years 1892, 1893, 1894 and 1895, and presented it to the county auditor and requested him to call the attention of county commissioners at any regular or special session, to such improper and erroneous charges for 1892, 1893, 1894 and 1895, and further requested said auditor, to grant and issue a refunder on the treasurer in favor of the relator, certifying that it was entitled to have refunded and paid back the sum of $940.29 so erroneously paid in December 1895, and to issue his remitter to said treasurer in favor of relator, certifying to said treasurer that -said sum of $940.29 which then stood charged on the duplicate against relator, June 20,1896, be remitted; yet the- auditor not disputing any of said facts, but admitting them to be correct, and notwithstanding the auditor had thus discovered and had made manifest to him the said improper and erroneous charges upon the said duplicates, refused and still refuses to call the attention of the county commissioners to the erroneous charges and errors apparent upon said duplicates for the years 1892, 1893 and 1894, and has refused and still refuses to grant and issue the refunder and remitter in favor of said relator for the sum set out for 1895, or otherwise to correct said errors upon the duplicate.
And being without other remedy as is averred, it prays that a writ issue to the defendant, commanding and directing him to call the attention of the commissioners to such erroneous and improper charges upon the duplicates for the years 1891, 1892, 1893 and 1894, and that he be directed to issue and grant the refunder and remitter for the sums set out for 1895, and for other relief.
In the petition there is no direct averment that the taxes claimed to be erroneous for 1891 have been paid but this is probably an oversight.
On the 6th of July 1896, a general demurrer was filed to this petition which was overruled by the court Sept. 8, and exceptions taken. On the same day, without giving the defendant leave to answer, a decree *91as prayed for was entered, that is that the defendant be required to call the attention of the commissionors to the improper and erroneous charges, upon the duplicates for the years, 1891,1892, 1893, and 1894 and to the improper and erroneous payment and collection of the taxes thereon, and that he issue and grant to the relator the refunder and remitter, for the tax for 1895.
On September 17 an answer was filed and on September 22 a general demurrer to this answer was filed.
The answer admits that defendant is the auditor, and the relator a corporation under the laws of Ohio for many years, and that the relator company on June 9, 1891, returned the real estate for taxation at the valuation and as claimed by the petition, and that the allegations as to its returns thereof for taxation for the years 1892, 1893, 1894 and 1895 were as set out in the petition. That said returns were regularly made and sworn to and were placed upon the duplicate of each respective year, and taxes thereon voluntarily paid by said company. He further admits that the values as fixed and determined by the board of revie w and county and city boards of equalizations and reported by them to the county auditor, are correctly stated in the petition. He then denies that he refused to correct the duplicate for the years aforesaid on the application of the relator, and avers that the said property of the relator was placed upon the duplicate as returned by the company in accordance •with law. And it denies all the other averments of the petition not specifically admitted.
The demurrer to this answer was sustained and defendant excepted. And thereupon defendant not desiring to answer further, the court found on the pleadings that the relator was entitled to the relief sought, and that there had been an erroneous and improper charge, and collection of taxes from the relator on the duplicates for the years 1891, 1892, 1893. 1894 and 1895 and the defendant was ordered to draw his warrant on the county treasurer in favor of the relator for the full amount of said taxes so erroneously charged and collected.
The questions which have been presented, or which arise on this record, are these : 1st. Whether mandamus will lie in a case of this kind; and this was presented by the demurrer to the petition. 2nd. Whether the fact that the relator company made this return of its real estate for taxation, affixing a valuation thereto, and afterwards voluntarily paid the tax levied on the amount so returned, is a bar to this action, and this is raised by the demurrer to the answer of the auditor; and 3d. If the action is maintainable, whether on the allegations of the pleadings, under the law as it stands, the relator was entitled to the relief sought, or to that actually granted by the court.
It is conceded that section -1038, Revised Statutes, is that upon which the relief sought is based. It gives to the auditor of the county the right, and imposes upon him the duty, from time to time, to correct all errors which he discovers in the tax list and duplicate, either in the name of the person charged with taxes or assessments, the description of lands or other property, or when property exempt from taxation has been charged with tax, or in the amount of such tax or assessments. * * * And when the auditor is satisfied, after having delivered the duplicate to the county treasurer for collection, that any tax or assessment therein, or any part thereof has been erroneously charged, he may give the person charged therewith a certificate to that effect to be presented to said treasurer, who shall deduct the amount from said *92levy or assessment. And if at any time the auditor discovers that any erroneous taxes or assessments have been charged and collected, he shall call the attention of the county commissioners thereto, and if the commissioners find such to be the case, thay shall order the auditor to draw his warrant on the county treasurer for the full amount of such taxes and assessments so erroneously charged and collected. By a subsequent provision in the same section, this refunder is limited to those payments made within the five years immediately prior to the discovery by the auditor.
The question then under this section is this: Whether mandamus will lie against the auditor to compel .him to issue a certificate, to be presented to the treasurer of the county, showing that the amount of ¡$940.28 was erroneously charged against the relator on the duplicate of 1895, payable June 20, 1896. It is entirely clear we think that under this section, this was the only certificate or warrant the auditor was authorized to issue as to any of these taxes of the relator, claimed to have been erroneously charged, except under the express direction of the county commissioners, acting under the provisions of this section. If the duty of the auditor as to this is judicial in its nature, or involving discretion on his part, it would seem that on general principles of the law, as well as by the express provisions of section 6742, Revised Statutes, the writ requiring him to do this special act, ought not to issue. And there is some reason to think in this case, that the duty so imposed upon him is not merely ministerial, for it is only where the auditor is satisfied, that the tax, or some part thereof, charged upon the duplicate for the current year, is erroneously charged, that he can under the statute issue a remitter, and his answer, that he was not satisfied of this, might be a good answer to the writ. But, however this may be, we do not tjhink it necessary to express an opinion upon it, for the reason that at this time the tax collectible June 20, 1896. which was unpaid when the petition in this case was filed, has since been paid, and the amount so paid therefore stands on the same footing that the other sums paid do; and the same steps must be taken as to that, as in the other cases.
Another reason is suggested why this action in mandamus will not lie, and that is, that it is claimed that the relator had a plain and a de-quate remedy in the ordinary course of the law, and if so, this is a defense. (Section 6744, Revised Statutes.) Section 5848, Revised Statutes, gives a person the right to enjoin the illegal collection of taxes, and to recover taxes illegally collected by action in the courts. But under this section, an action to recover taxes erroneously collected, could only be maintained when brought within one year after such collection. Clearly the relator might have availed itself of the provisions of this statute, but it did not do so, and it is now too late to do it, and the question then is, can it now resort to a proceeding in mandamus, and thereby in effect extend the statute of limitations five years.
We incline to the opinion that the proceeding in mandamus, to require the auditor, on discovering that the taxes have been erroneously collected within five years to call the attention of the county commissioners'thereto will lie in this case. So far as we can see, the provisions of what is now section 1088, with reference to giving the county commissioners the right to order the refunder of taxes erroneously collected within the preceding five years, first appeared in Ohio Raws, Vol. 70, page 11, passed January 16, 1873. At that time, substantially, the provisions of what is now section 5848, were in force under the law oí *93May 1, 1856, (S. & C., 1151-2) which also required suit to collect taxes erroneously collected, to be brought within one year after their payment. The law then of January 16, 1873, seems to confer a new right to persons who have erroneously paid taxes, viz., to have the judgment of the county commissioners, as to whether on principles of equity and justice, taxes erroneously collected within five years before that time should be refunded. And if a duty is imposed upon the auditor on discovering such erroneous collection, to call the attention of the commissioners to it, this is a ministerial act, yvhich he may be required to do, by proceedings in mandamus. We think then the court did not err in overruling the demurrer to the petition.
Rendigs, Foraker and Dinsmore, for the auditor. Miller Ouicalt, for the gas company.Was the demurrer to the answer of the defendant properly sustained? This raises the question whether the fact that the relator voluntarily paid the taxes erroneously charged against it, would bar it of its right in this mandamus proceeding to have the matter brought to the attention of the commissioners. If the action were one to recover the taxes so erroneously collected, it is probable under the decisions of our courts that the defense would be a good one. See 48 O. S., 210. But for the reasons before stated, we think that this averment would not be a defense to this kind of action. And we suppose that the commissioners might order a refunder when the case was brought to their consideration, though the payment had been voluntarily. That is a matter to be settled by the board of commissioners. There was no averment in the answer of the auditor that he had not discovered the fact that these taxes had been erroneously collected. He only alleges the voluntary payment of the taxes and denies that he refused to call the attention ol the commissioners to the matter when requested. The demurrer to this answer was properly sustained by the court.
But we think that the judgment of the court on the petition, went far beyond the claim made by it, and far beyond the power of the court. All that should have been done, was to require the auditor to call the attention of the county commissioners to the matter, so that they might consider it, and the order of the court actually made, requiring the auditor to draw his warrant on the county treasurer in favor of the relator for the full amount of the taxes erroneously collected as found by the court for the years 1891, 1892, 1893, 1894 and 1895, as set out in detail in the plaintiff’s petition, was clearly erroneous. As before stated the auditor can only do so, when ordered to do it by the commissioners. The judgment will therefore be reversed and the case be remanded to the court of common pleas for further proceedings.