State ex rel. v. Crites, Auditor.

tember 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 case 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 assessed 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

State ex rel. v. Crites, Auditor.

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 tes

State ex rel. v. Crites, Auditor.

timony, 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 subpoena 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 5th day of February, A. D. 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

State ex rel. v. Crites, Auditor.

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."

State ex rel. v. Crites, Auditor.

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.