Ide Trucking Co. v. Schneider

197 N.E.2d 569, 93 Ohio Law. Abs. 306, 26 Ohio Op. 2d 239, 1964 Ohio Misc. LEXIS 311

• Court: Court of Common Pleas of Ohio, Franklin County, Civil Division
• Decided: January 16, 1964
• Docket: No. 218538
• Status: Published

Opinion

Petree, J.

Motion of defendant to dissolve a temporary restraining order of this Court issued October 23, 1963.

Section 5703.38, Revised Code, provides:

“No injunction shall issue suspending or staying any order, determination, or direction of the department of taxation, or any action of the auditor of state, treasurer of state, or attorney general required by law to be taken in pursuance of any such order, determination, or direction. This section does not affect any right or defense in any action to collect any tax or penalty.”

In State, ex rel. Tax Commission, v. Faust, 113 Ohio St., 365, the Supreme Court of Ohio héld:

“The Constitution provides that the jurisdiction of the Court of Common Pleas shall be fixed by law, and that court has such jurisdiction only as is conferred by the Legislature.

“Section 1465-31, General Code, provides that no injunction shall issue suspending or staying any order, determination, or direction of the tax commissoin, or any action of the auditor of state, treasurer of state, or attorney general, required by law to be taken in pursuance of any such order, determination, or direction.

“The action of the Court of Common Pleas, in issuing the order of injunction in Mahoning county, being directly at variance with the positive inhibition of the Legislature, found in Section 1465-31, General Code, we are unable to see how such order can be valid * * *”

With the statute the same now as when 113 Ohio St. (supra) was decided, the Court feels that the motion to dissolve should be sustained. See also Bell v. State, ex rel. Methodist Book Concern, 129 Ohio St., 463.

The bond requirement under Section 5728.10, Revised Code, is jurisdictional and is constitutional under the holding of Riss & Co., Inc. v. Bowers, 114 Ohio App., 429. See headnote 9, bottom of page 430 (10th District Court of Appeals).

The entry may be drawn sustaining defendant’s motion and dissolving the temporary restraining order heretofore issued. Exceptions to plaintiff.