Insurance Co. v. Hard. The jurisdiction of the court of common pleas to review the action and proceeding of the auditor is conferred by sec. 5848, Rev. Stat. "The court may enjoin the whole tax, or part of it, or remit the penalty, as the facts and the justice of the case require. The suits afford every remedy a citizen can require, consistently with the interests of the state, which cannot be delayed in the collection of its revenue without more or less embarrassment to all the public interests." Musser v. Adair, 55 Ohio St., 466. It appears that the auditor, before taking any steps in the premises, notified the officers of the Ohio Farmers Insurance Company of his belief that the property of the company had not been fully and fairly returned for taxation, and set a time for the hearing of the case before him and such explanations as the officers of the company might see fit to make at that time. It appears also that one of the directors or officers of the company, pursuant to such notice, appeared before the auditor and requested a postponement until a subsequent day for such hearing, which was granted, but upon the adjourned day and at the time and place fixed the company failed to appear, and, no officer or agent appearing in its behalf, the auditor thereupon proceeded to examine the evidence which had been submitted to him, touching the alleged failure of the company to make due and full returns of its property and assests for the five years preceding, and also for the current year. Doubtless the company was not obliged to appear before the auditor and make defense; it could let the case go by default if it saw fit so to do, and no good reason has been presented to the court to account for the failure of the company to appear before the auditor at the time mutually agreed upon and submit the evidence and make the explanation which has been submitted to the court in this case. It was a question of taxation, with which the auditor of the county, from the very nature of his duties, was quite familiar, and as he was acting under an oath of office, as well as under the sanction of official duty, an honest purpose in the discharge of his official duties is to be presumed. The proceeding before the auditor was had under sec. 2781, as amended April 14, 1886, and which was in force at the time when the auditor made his correction, and 2882, which sections read as follows: "Section 2781. If any person whose duty it is to list property or make a return thereof for taxation, either to the assessor or county auditor, shall, in any year or years make a false return or statement, or shall evade making a return or statement, the county auditor shall, for each year, ascertain, as near as practicable, the true amount of personal property, monies, credits, and investments that such person ought to have returned or listed, for not exceeding the five years next prior to the year in which the inquiries and corrections provided for in this and the next section are made; and to the amount so ascertained as omitted for each year, he shall add fifty per centum, multiply the omitted sum or Medina Common Pleas. sums, and [as] increased by said penalty by the rate of taxation belonging to said year or years, and accordingly enter the same on the tax lists in his office, giving a certificate therefor to the county treasurer, who shall collect the same as other taxes." Section 2782. The county auditor, if he shall have reason to believe, or be informed that any person has given to the assessor a false statement of the personal property, monies, or credits, investments in bonds, stocks, joint-stock companies, or otherwise, or that the assessor has not returned the full amount required to be listed in his ward or township, or has omitted or made an erroneous return of any property, moneys, or credits, investments in bonds, stocks, joint-stock companies, or otherwise, which are by law subject to taxation, shall proceed, at any time before the final settlement with the county treasurer to correct the return of the assessor, and to charge such persons on the duplicate with the proper amount of taxes; to enable him to do which, he is hereby authorized and empowered to issue compulsory process, and require the attendance of any person or persons whom he may suppose to have a knowledge of the articles, or value of the personal property, moneys, or credits, investments in bonds, stocks, joint-stock companies, or otherwise, and examine such person or persons, on oath, in relation to such statement or return; and it shall be the duty of the auditor, in all such cases, to notify every such person, before making the entry on the tax list and duplicate, that he may have an opportunity of showing that his statement or return of the assessor was correct; and the county auditor shall, in all such cases, file in his office a statement of the facts or evidence upon which he made such correction; but he shall, in no case, reduce the amount returned by the assessor, without the written assent of the auditor of state, given on a statement of facts submitted by the county auditor. In all cases in which any person shall make a false statement of the amount of property for taxation, to evade the payment of taxes in whole or in part, the person making such false statement shall be liable for, and pay all costs and expenses that may be incurred under the provisions of this section, and the same fees and costs shall be allowed and paid as are now or may be allowed by law, for similiar services, and if not paid, may be collected before any justice of the peace of the proper county, by suit in the name of the county commissioners, but in all cases under this section, where the statement shall be found correct, and no intention to evade the payment of taxes, the costs and expenses incurred under this section shall be paid out of the county treasury of the proper county, on the order of the county auditor." "The auditor of a county, under secs 2781 and 2782, Rev. Stat., does not act as a judge. He is required to inquire and may take evidence to inform his mind and must use his best judgment in the matter, but in all this he does not act judicially within the meaning of the constitution. * * * He acts simply as an agent of the state in the valuation and Insurance Co. v. Hard. assessment of property of its citizens for the purpose of taxation. He is simply a ministerial officer and none other. His proceedings under these sections make a prima facie case for the collection of the tax based on the additions." By Judge Minshall, in Musser v. Adair, 55 Ohio St., 466. The auditor of Medina county, therefore, did at the time stated, and after due notice to the company, proceed to inquire as to the returns made for taxation by the Ohio Farmers Insurance Company for the years mentioned. He had before him the annual reports made by the company to the superintendent of insurance, pursuant to sec. 3654, Rev. Stat., which, so far as it is necessary in this case to refer to, reads as follows: "The president or vice-president and secretary of such (each) insurance company organized under any law of this or any other state, and doing business in this state, shall, annually, on the first day of January, or within thirty days thereafter, prepare under oath, and deposit in the office of the superintendent of insurance a statement of the condition of such company on the 31st day of December, then next preceding, exhibiting the following facts and items and in the following form, namely:" And the report filed by the company with the superintendent of insurance shows assets as follows: For the year 1886 Real estate.. Loans on mortgages....... Interest due on mortgages...................... Interest accrued on mortgages..... U. S. regular 4 per cent. bonds....... Municipal bonds....... Loans on collaterals......... Cash on hand and in banks....... Interest due on stocks......... Bills receivable taken for fire risks, not matured...... Rents due, etc....... $ 18,000 00 738,346 38 1,510 00 40,566 93 31,750 00 ..92,697 68 19,500 00 183,622 10 2,266 08 219,138 86 4,081 00 Bills receivable taken for fire risks, not matured............................ 251,567 20 $1,415,197 54 Bills receivable taken for fire risks, not matured......... 220,152 16 $1,561,008 61 While the property returned for taxation by the company to the Finding these differences for each of these years, and upon this and other evidence, the auditor proceeded to and did correct the returns by increasing the valuation to what he believed to be the true value in money of the taxable assets of the company. These reports of the company to the superintendent of insurance were made on the thirtyfirst of December in each year, while the returns for taxation were made on the Saturday before the second Monday of April in each year, so that |