State ex rel. Hamilton (City) v. Long , 5 Ohio Law. Abs. 135 ( 1926 )

PER CURIAM.

The action in the Butler Common Pleas was brought by the State on the relation of the City of Hamilton, seeking a mandamus to re-quiie the Budget Commission of Butler County to levy for the general purposes of the city, an additional levy for current expenses under 5649-5e GC. The trial court refused the writ and' error was prosecuted.

On July 21st, the city council passed a resolution asking for the additional levy and the resolution was approved on July 22nd. Said resolution directed the clerk to transmit a certified copy thereof to the Commission; but the cleik failed to deliver a copy until September 16th. The statute requires certification to be made on or before the first Monday in August. The Commission did not meet and complete its work on or before the third Monday in August as required by the Code.

It is contended that’by failure to transmit the certified copy of the resolution as required, the city lost its rights to the consideration of the extra levy by the Budget Commission. The trial court found this to be the law and further that the city lost its rights because of unreasonable delay. The Court of Appeals held:

1. Council had done all they could do under the statute to get the question of additional levy before the Commission. It had passed the resolution in time, and provided that the clerk should transmit the same according to law.

2. The clerks duty was ministerial; and it has been frequently held that the failure of a ministerial officer to perform a duty will not defeat a right given by law.

3. The Commission contends that the word “shall” is especially emphasized and should be strictly construed. Courts have held the duty of the clerk to transmit in cases of perfected appeal under the Code, to be directory, and his failure to perform such duties will not defeat the appeal.

4-. The principal here is the same. The statute in question is directory. State ex v. Edmonson, 89 OS. 93; State ex v. Ruse, 90 OS. 345.

5. The record shows the Commission had the certified copy in its hands prior to the completion of its work. The suit in mandamus was brought within a few days after the Commission had rejected consideration of the resolution. There seems to be no unreasonable delay on part of the city.

Judgment reversed and cause remanded with instructions to grant writ of mandamus.

(Buchwalter, PJ., and Hamilton & Cushing, JJ., concur.)