STATE Ex HARSHMAN v. LUTZ, Aud

This is an action in mandamus. The relator, in brief, in his petition states that he is the duly appointed and qualified city attorney for the city of Dayton; that the defendant is the duly elected and qualified county auditor of Montgomery county; that on September 2, 1931, the city commission of the city of Dayton, acting pursuant to Section 5625-15, General Code, duly adopted a resolution finding that the amount of taxes which may be raised within the fifteen-mill limitation will be insufficient to provide an adequate amount for the necessary requirements of the city of Dayton, including the purposes set forth in the next succeeding section, and that it is necessary to levy a tax in excess of the fifteen-mill limitation for said purpose.

The second section of said resolution defining the purpose of such levy reads as follows:

"Section 2. — In addition to the levy of taxes for any and all other purposes in the City of Dayton of and in excess of the fifteen mill limitation as provided by law it is necessary to levy a tax of one mill on each dollar of taxable property within said city for the purpose of providing funds for the public support and relief of residents of the City of Dayton legally entitled to receive the same. Said levy shall be effective for a period of one year and shall be made upon the tax list of said city at the earliest date allowed by law."

The petition further recites that said resolution after being so adopted was duly filed with the clerk of said commission, signed by the mayor of said city, was duly published, and that the clerk of said commission duly certified and filed a copy thereof with the board of elections of Montgomery county as required by law; that said board of elections had the necessary ballots legally prepared and the question of authorizing said levy was duly submitted to the electors of said city at the general election held November 3, 1931, and that after a canvass of the vote cast upon said question said board of elections on November 12, 1931, certified that the total number of voters voting at said election upon said question in said city was 29,160, and of this number that 15,766, being a majority of the votes cast, voted in favor of the same, and 13,394 against it; that on November 25, 1931, said city commission duly and by unanimous vote of all members of said commission adopted an ordinance levying a tax of one mill on each dollar of taxable property within the city of Dayton to provide funds for the public support and the relief of residents of said city legally entitled to receive the same, and duly certified a copy of said ordinance to the county auditor of Montgomery county for the purpose of having the same placed upon the tax duplicate of said county; that said county auditor who was charged with the duty of preparing the tax lists, including special levies, voted by the electors, and of delivering a duplicate thereof to the county treasurer, who is charged by law with the collection of said taxes, now refuses to include said one-mill additional levy of taxes as voted by a majority of electors of said city, as aforesaid, and threatens to deliver the tax duplicates for said city to the county treasurer without including said one-mill levy voted as aforesaid. The tax rating of said city exclusive of said voted one-mill levy applicable to the tax list now being prepared is $23.60 per thousand valuation, and inclusive of said one-mill levy is $24.60 per thousand valuation.

The necessity of such levy for caring for the persons for whom the city is enjoined by law to furnish support and relief is set forth in detail in the petition.

The relator therefore asks that a writ of mandamus issue commanding the defendant to include said one-mill of additional tax for poor relief in his tax lists for the city of Dayton.

To the petition of the plaintiff the defendant has filed an answer in which many of the averments of the petition are admitted. Defendant admits that he did and does now decline to add said additional one-mill levy of taxes, as alleged in plaintiff's petition. In brief, the defendant says that at the last session of the legislature, Section 5625-18, General Code (114 Ohio Laws, 859), was amended so as to require 55 per cent. of the electors voting upon a levy necessary to carry a proposal submitted under General Code, Section 5625-15; that said amendment became effective October 14, 1931, and was in force and effect when the electors voted in said city on November 3, 1931; that said proposed levy had more than a majority vote approving same, but that it failed by 272 votes to receive a 55 per cent. approval, and therefore failed to pass.

Defendant, in brief, for further answer claims that said one-mill levy for poor relief was illegally submitted to the electors of the city for the reason that Section 5625-15, General Code, provides that the resolution be confined to a single purpose, but that the commission of said city, a few days after adopting the resolution to submit the one-mill levy for poor relief, adopted another and independent resolution providing that a proposal be submitted to the electors under paragraph one of Section 5625-15, General Code, for a one-mill levy for current expenses, and that both of said resolutions were duly certified to the board of elections and duly submitted to the electors on November 3, 1931; that only one proposal could legally be submitted under paragraph one of said section, and that the one-mill poor relief proposal was illegal because another proposal for current expenses was submitted at the same time and received less than a majority vote and was defeated. The defendant asks that the petition be dismissed.

To this answer the relator replies, in brief, to the effect that the amendment to Section 5625-18, General Code, effective October 14, 1931, has no application to the vote received on the proposal for additional tax levy for poor relief, for the reason that the proceedings pertaining to the submission of said proposal were begun September 2, 1931, with the adoption of a resolution as required by law, and that under Section 26, General Code, the proceedings so begun under the original statute should be carried to a conclusion thereunder, and not under the amendment which became effective October 14, 1931; that the one-mill levy for poor relief was regularly submitted, and that the same is a levy for current expenses, and that there is no requirement in law prohibiting a political subdivision from submitting more than one proposal for special levy outside of the fifteen-mill limitation to the electors, and that in the absence of any express provision in the statute a political subdivision has the power to submit two or more proposals falling within the same general purpose, to wit, current expenses; that the resolution relating to the levy for poor relief was adopted September 2, 1931; that the subsequent resolution for current expenses was adopted September 14, 1931; that if the adopting of the poor relief exhausted the city's power to submit the levy for current expenses then the proposed levy for current expenses subsequently begun and adopted September 14 would be the levy which would fail for lack of authority, and not the levy first begun; that neither defendant, nor any other interested persons, who were charged with knowledge of all the proceedings had in relation to the levy, at any time made any objection thereto because of any irregularity, and are therefore estopped from now raising such question, and that the allegations in the defendant's answer are used indirectly to challenge the election which neither defendant nor any other interested party can now do, because the time provided by law for an election contest by Section 4785-166 has expired. The plaintiff therefore repeats the prayer of his petition.

In brief, the above are the issues raised by the pleadings.

The case was submitted to this court upon the pleadings, a stipulation of counsel, and the arguments of counsel. There have also been submitted to us very exhaustive briefs of counsel including an opinion of the attorney general of Ohio upon questions similar to the issues raised by the pleadings in this case.

The briefs of counsel recite the various sections of our Code that are pertinent, and also discuss many authorities from this and sister states upon the questions raised by the pleadings.

We have examined with care many of the authorities so cited by counsel, and have considered the sections of our Code pertinent to the issues suggested by counsel.

As counsel have expressed a desire for a speedy determination of this case, we will merely announce the conclusion at which we have arrived, after a study of their briefs, rather than attempt to discuss the many authorities which have been cited.

Section 5625-1, General Code, defines the various terms employed in the tax levying act. Paragraph f includes and defines "Current Expenses."

Section 5625-15 provides that the taxing authority of any subdivision at any time prior to September 15 in any year by vote of two-thirds of all members of said body may declare by resolution that the amount of taxes which may be raised within the fifteen-mill limitation will be insufficient to provide an adequate amount for the necessary requirements of the subdivision, and that it will be necessary to levy a tax in excess of such limitation for the following purpose: (1) Current expenses of the subdivision.

Section 3476, General Code, in brief, provides that:

"The proper officers of each city therein, respectively, shall afford at the expense of such * * * municipal corporation public support or relief to all persons therein who are in condition requiring it."

The duty to afford relief to those entitled thereto is therefore prescribed by law.

It is apparent that these proceedings were had by the city authorities for the purpose of complying with this provision of law, and we find that the resolution and ordinance relating thereto were duly passed, and that the question was regularly submitted to the electors of the city of Dayton by the board of elections, and that the result of the vote on such proposition was as set forth in the pleadings.

Section 26, General Code, provides as follows:

"Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act."

From a consideration of the authorities we are of opinion that Section 5625-18, General Code, as it existed at the time of the passage of the resolution, controls this proceeding, and that the subsequent amendment of such statute does not affect proceedings which were instituted prior to October 14, 1931, the date such amendment became effective. It therefore follows, the majority of the electors voting at such election having voted in favor thereof, that the taxing authorities of the municipality could levy a tax within such subdivision for such additional purpose and have the same placed upon the tax duplicate as provided by law.

In reference to another issue raised by the pleadings, we are of opinion that the one-mill levy for poor relief was legally submitted, and that there is no limitation preventing the proper city authorities from submitting to the electors at the same election more than one proposal for special levies outside of the fifteen-mill limitation. However, in the instant case, if our conclusion should not be correct, we are of opinion that the resolution of date September 14, 1931, for current expenses, would fail, and not the one of date September 2, for poor relief. We have considered the other questions suggested by counsel for plaintiff in oral argument, but if our conclusions are correct upon the above propositions then the same are determinative of the case and it will be unnecessary to discuss such additional questions.

Counsel for the defendant rely upon the case of Alexander v.Spencer, Treas., 13 C.C. (N.S.), 475, 22 C.D., 306, affirmed without opinion, Spencer, Treas., v. Alexander, 83 Ohio St. 492,94 N.E. 1115. As the Supreme Court rendered no opinion, we cannot determine upon what ground its judgment was based. We cannot escape the conclusion, however, that the question in that case was different from the one in the case at bar. In theAlexander case, a special levy had been created for sewer purposes under the provisions of Section 2713, Revised Statutes. That section was repealed. The question presented in theAlexander case was as to the right of the municipal corporation to make a levy for the purpose of raising funds to meet the expenditures already incurred for sewer purposes. It was held in that case that such a levy could not be made. There were no proceedings pending in that case which could have been made the basis for the levy of a tax. Here there was a proceeding pending at the time of the taking effect of the law fixing the number of votes required for the legality of a levy. The proceedings in the present case began with the resolution for the authorization of the one-mill levy, and as the amendment providing for a fifty-five per cent. vote took effect after the proceedings were pending we are of opinion that such law would not apply.

From a consideration of the pleadings and briefs, we are of opinion that the plaintiff is entitled to the relief asked for.

Writ allowed.

ALLREAD and HORNBECK, JJ., concur.