Kurtz v. City of Columbus

This cause was submitted on appeal on questions of law from a judgment in favor of the defendants. Plaintiff filed a petition and thereafter two amendments thereto, to all of which general demurrers were interposed and sustained. Upon the sustaining of the demurrer to the second amended petition, plaintiff elected to plead no further and judgment was entered in favor of the defendants.

By agreement the defendants have, in this court, interposed a general demurrer to the second amended petition. Inasmuch as this is an appeal on questions of law, and the right to enter the judgment in the trial court was predicated upon the declination of the plaintiff to plead further, after demurrer was sustained, the sole question presented on the appeal is whether the general demurrer to the second amended petition was properly sustained.

We are determining the correctness of the action of the Common Pleas Court on the demurrer and are favored with two written decisions by the judge who passed upon the demurrers.

It appears from the petition that prior to November 7, 1933, the council of the city of Columbus enacted the requisite legislation to submit to the electors of the city, on the above date, the proposition whether bonds of the city should be issued, outside the constitutional 15-mill limitation, in the sum of $10,403,200 representative of nine bond issues, one of which, in the sum of $824,000, was for the purpose of improving and enlarging the municipal light plant of the city of Columbus. Upon the bond issue approximately 64 per cent of the votes cast were in favor thereof.

The legislation preliminary to and the proposals submitted at the general election were predicated upon the authority of what is known as the Annat Act, consisting of Amended Senate Bill No. 403 (115 Ohio Laws, 601), effective July 18, 1933, and Amended Substitute Senate Bill No. 38 (115 Ohio Laws [Pt. 2], 80), effective September 22, 1933.

Subsequent to the favorable action of the electors on the proposed bond issues, the council of the city of Columbus, by appropriate resolutions on November 13 and 27, 1933, declared it necessary to issue and sell the bonds for the purpose of raising funds to pay the city's part of the cost and expense of constructing an extension to the present buildings at the municipal light plant, together with the purchase and installation of additional equipment and the acquisition of lands and right of ways therefor in the sum of $824,000. Such amount represented that part of the total cost of the project which the city would bear, the balance of the cost being borne by the United States of America, under the provisions of the National Industrial Recovery Act enacted by the Seventy-third Congress of the United States on June 16, 1933 (48 Stats. at L., 195). A resolution further set out the average tax levy necessary to pay the interest on and retire the bonds and the maximum number of years during which the bonds would run and provision is made for public notice of the proposed bond issue and other essentials relative thereto.

All of the proposals to issue bonds carried at the aforesaid election and were conditioned upon the securing of federal aid in the sum of 30 per cent of the total cost of labor and maintenance of the respective improvements to be paid for by the proceeds of the bond issues.

In this opinion we refer to the second amended petition as the petition, to the municipal light plant bonds as the plant bonds.

The claim of the plaintiff as made in the petition respecting the invalidity of the proceedings, legislation, submission of proposed bond issues to vote and subsequent steps taken thereunder appears under 17 headings which we shall not now detail, but which may later be alluded to.

The Annat Act was enacted as emergency legislation to provide exceptions to the Uniform Bond Act and to enable certain subdivisions of Ohio to participate in the federal aid provided by the National Industrial Recovery Act. Without this legislation many of the subdivisions of the state were unable to issue any more bonds because of their outstanding bonded indebtedness. The Annat Act provided that certain limitations be raised, and for certain exceptions to the Uniform Bond Act. It will be noted in detail later.

On the date of the November election, 1933, the Ohio Constitution carried the 15-mill limitation which could only be exceeded by a majority vote of the electors voting on the question of issuing bonds outside of the recited limitations. At the same election the people voted upon and approved an amendment to the Constitution, Section 2, Article XII, reducing the tax limitation to 10 mills. This amendment was effective January 1, 1934. The resolution of the city council of Columbus, proposing to issue the plant bonds, was passed in December, 1933.

Effective June 7, 1935, the Annat Act was again amended (House Bill No. 544 [116 Ohio Laws, 580]). This will be noted later.

Before and after the dates of enactment of the Annat Act and before, at the time of and subsequent to the November election, 1933, supplementary Section 2293-23b, first found in House Bill No. 124 (115 Ohio Laws, 442), effective October 4, 1933, was in effect. It will be stated later.

This matter being before us upon demurrer to the plaintiff's petition and amendments thereto, it is well for the moment to re-examine the petition and its prayer.

After setting out many allegations, the petition concludes with the prayer that the court issue a restraining order enjoining the defendants from further proceeding with the issuance of any of the bonds for the proposed extension of the municipal light plant, from using in any way the proceeds of the bonds, from receiving any part of the grant, from, in any way, proceeding with the proposed project, and from awarding any contracts or paying out any money; that the court find that the Annat Act and Amended Senate Bill No. 403 are unconstitutional and void, the resolutions of the city invalid and unconstitutional, and the grant-agreement unconstitutional as violating the Constitutions of the United States and of Ohio and the city charter, and involving the unlawful surrender of powers reserved to the state and city; that the effective period within which the bonds may be issued has terminated; that the Annat Act is no longer applicable to the issuance of the bonds; that the election to authorize the issuance of the bonds and the levy of a tax is invalid; and that the city has exhausted its power to issue municipal light plant bonds under the Annat Act or otherwise.

If any of the allegations in the petition as amended (which, if well plead, are admitted by the demurrer to be true) support any claim of the plaintiff as to the invalidity of the proposed bond issue, it becomes our duty to overrule the demurrer and require the city to meet the issues by an answer, if it so elects.

There are many claims asserted by the plaintiff which may be summarily disposed of so as to narrow the issue as much as possible.

We do not propose to go into detail in the discussion of the claims and counterclaims of the parties to this action as they are too numerous and complicated to be discussed within reasonable limits.

Some matters, however, are of such importance that we may briefly note our conclusions.

Plaintiff prays that the court may decree that the Annat Act and the related legislation be declared unconstitutional and void. We think this matter is disposed of by the Supreme Court in the very well considered case of State, ex rel. City ofColumbus, v. Ketterer, 127 Ohio St. 483,189 N.E. 252, which related to the issue of sewer bonds in the city of Columbus. It was there held that the Annat Act and the related amendments are constitutional. The case is familiar to counsel and need not be discussed further but we use it as the basis of our determination that the act, together with the ordinances passed by the city in the present case, is not subject to attack on the ground of violating either the city charter or the Constitutions of Ohio or the United States, and that it, as well as the ordinances, does not involve an unlawful surrender of powers reserved to the state or city, in spite of the insistence of the plaintiff to the contrary.

We also readily arrive at the conclusion that the claim that the limit within which bonds may be issued has been exceeded by the amount of bonds authorized by the election is without merit. We believe that the conclusions of the court below, to the effect that the ability to issue the bonds relates not to the time of election but to the time when the bonds are to be issued, is supported by the case of State, ex rel. Villageof Oak Hill, v. Brown, 125 Ohio St. 171,180 N.E. 707, wherein the question of the ability to issue the bonds revolved about the tax valuation, which it was claimed would not support the issue at the time the bonds were voted for, but which would support it at the time the bonds were issued. It was there held that, "it is the value of all taxable property appearing on the tax lists in effect at the time when the bonds or notes are delivered and the indebtedness incurred, which determines the allowable indebtedness of a municipality under the statute, not the value as shown by the lists in effect when the proceedings for the issuance of the bonds or notes were commenced." While this case does not involve the exact point involved here the principle seems to us applicable. This position is also supported by statute. Section 2293-23b, General Code, provides that, "bonds * * * issued within the debt limitation * * * shall be valid and in no manner affected by the fact that the balance of said bonds * * * cannot be issued by reason of such bonded indebtedness * * *." We think this is a statutory statement of the principles we have before discussed.

The disposition of these matters narrows the point at issue to whether the petition discloses allegations that would support the claim that the election to authorize the issuance of said bonds and the levy of a tax is now without force or effect.

It may be of value to refer to the constitutional provisions in relation to bond issues before discussing the statutes. Section 2, Article XII, provides:

"No property, taxed according to value, shall be so taxed in excess of one per cent of its true value in money for all state and local purposes, but laws may be passed authorizing additional taxes to be levied outside of such limitation, either when approved by at least a majority of the electors of the taxing district voting on such proposition, or when provided for by the charter of a municipal corporation."

The tax limit at the time of the vote was one and one-half per cent. The vote now required is 65 per cent instead of 50 per cent as of the date of the election.

Section 6, Article XIII, provides that:

"The General Assembly shall provide for the organization of cities, and incorporated villages, by general laws, and restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent the abuse of such power."

Section 13, Article XVIII, provides:

"Laws may be passed to limit the power of municipalities to levy taxes and incur debts for local purposes * * *."

Section 11, Article XII, provides:

"No bonded indebtedness of the state, or any political subdivisions thereof, shall be incurred or renewed, unless, in the legislation under which such indebtedness is incurred or renewed, provision is made for levying and collecting annually by taxation an amount sufficient to pay the interest on said bonds, and to provide a sinking fund for their final redemption at maturity."

For the interpretation of this section, see Link v.Karb, Mayor, 89 Ohio St. 326, 104 N.E. 632.

Provisions in relation to the Uniform Bond Act are found in Section 2293-1 et seq., General Code. Many sections of this act are applicable to the instant case.

Section 2293-14, General Code, provides that the net indebtedness incurred by a municipal corporation without a vote of the electors shall never exceed one per cent of the total value of all the property. It is further provided:

"The net indebtedness created or incurred by a municipal corporation shall never exceed five per cent of the total value of all property in such municipal corporation as listed and assessed for taxation."

This section was later supplemented by Section 2293-14a, General Code, later to be noted.

Section 2293-23b, General Code, provides that if before the bonds authorized by election are issued "the bonded indebtedness of the subdivision shall exceed that allowed by law, then none of said bonds or notes shall be issued and the authority to issue same by virtue of said election shallbecome void." (Italics ours.)

No bonds authorized by a vote shall be issued after the first day of the fourth January following the election on such proposition, but this period of limitation shall not be deemed to run for any time during which the project for which such bonds have been authorized or any part thereof is involved in litigation or the issuing or validity is so involved. This section as amended, effective March 16, 1937 (H.B. 255, 117 Ohio Laws, 44), provides that limitations of this section shall not apply to certain bonds and one exception is, "or if such bonds are to be issued for the purpose of participating in any federal aid or any public works program or any work relief program aided in any way by the United States of America or any agency or instrumentality thereof, or for carrying forward any project incident to or necessary for the procuring of federal aid for a public improvement."

During the first years of the depression many special statutes were passed which did not purport to become a part of the Uniform Bond Act, and received no sectional numbers. The first one of these special statutes appears in 115 Ohio Laws, 601, and is known as Amended Senate Bill 403, commonly known as the Annat Act. It is an act to provide exceptions to the provisions of the Uniform Bond Act to enable subdivisions of Ohio to participate in federal aid. Section 1 provides that for the purpose of enabling municipal corporations to participate in federal aid and forthat purpose only the taxing authority is authorized to issue bonds subject to the provisions of Sections 2293-1 to 2293-37, General Code. It provides that if the Tax Commission certifies that the corporation is unable to issue such bonds subject to the limitations prescribed by certain specific sections, whether or not such bonds have been or maybe voted, the bonds may be issued to the extent required, without authority of an election, and outside the limitations prescribed by the sections of the Code after exhausing the powers for the creation of indebtedness within the limitation, provided that the aggregate amount of such bonds issued under the act in excess of such limitation shall not exceed the amount by which the net indebtedness of the municipality within the limitations will have been reduced by the 31st day of December, 1938. It is further provided that if the question of issuing any such bonds is submitted to the electors it shall require the affirmative vote of a majority.

The act was declared to be an emergency measure in order to permit subdivisions to participate in the federal public works program and receive the benefit of grants so that the citizens of Ohio will not be prejudiced by aid being granted to other states, as many municipalities had issued bonds up to their debt limitations under the then existing laws. This act was passed July 1, 1933, and approved July 18, 1933. In 115 Ohio Laws (Pt. 2), 80, is found Amended Substitute Senate Bill 38, captioned: "To provide further exception to the ``Uniform Bond Act,' * * * to amend Section 1 of Amended Senate Bill No. 403 * * * approved July 18, 1933 * * *." It provides that for the purpose of enabling the municipal corporation to participate in the federal aid and for that purpose only the taxing authority is authorized to issue bonds subject to the provisions of the Uniform Bond Act and if the question be submitted to a vote only the affirmative vote of a majority is required. It is provided that the question of issuing such bonds may be submitted to the electors notwithstanding certain enumerated conditions, but no such bonds shall be issued whether under authority of an election or otherwise excepting to the extent that the projects to be financed have received the approval of the federal authorities. Certain other liberalizing provisions are incorporated. The act was passed September 20, 1933, and approved September 22, 1933.

In 116 Ohio Laws, 580, appears House Bill 544 providing for an amendment to the much amended Amended Substitute Senate Bill 38. It provides that for the purpose of enabling municipal corporations to participate in federal aid, as enumerated, and for that purpose only, the municipal corporation is authorized to issue bonds. The limitations are much the same as in the original act. If the question of issuing the bonds is submitted to a vote, the issue shall require only the affirmative vote of at least65 per cent of those voting on the proposition. It is provided that "this act shall apply to all proceedings, including those pending at the time this act takes effect." It was approved on the 7th day of June, 1935.

House Bill 124 (115 Ohio Laws, 442) was enacted to supplement Section 2293-23, General Code, by the enactment of supplemental Section 2293-23b. It supplemented Section 2293-23 and provided by Section 2293-23b, that if before bonds authorized by election under the terms of Section 2293-23 "the bonded indebtedness of the subdivision shall exceed that allowed by law then none of said bonds or notes shall be issued andthe authority to issue same by virtue of said election shallbecome void." (Italics ours.) It provides that the terms of the act shall not apply to any bonds authorized if 10 per cent of the sum authorized for the project has been expended or if 10 per cent of the bonds authorized or anticipatory notes has been issued and sold. This act was approved June 30, 1933, and was in effect at the time of the vote in November, 1933.

It is claimed by counsel for plaintiff that the allegations made in the first and second amendments to the petition are sufficient to bring the proposed bond issue within the provisions of Section 2293-23b, General Code (117 Ohio Laws, 867), which we think important enough to quote in part:

"If, before bonds authorized by election under terms of Section 2293-23 or notes in anticipation of such bonds are issued, the bonded indebtedness of the subdivision shall exceed that allowed by law, then none of said bonds or notes shall be issued and the authority to issue same by virtue of said election shall become void."

If, as claimed by plaintiff, the allegations of his amendments are such as to make the bonds void, then we must determine whether subsequent legislation reestablishes the validity of the vote and the validity of the bonds issued in pursuance thereof. This is claimed by the city to have been done under two separate amendments, one amending Section 2293-23b and one Section 2293-14a, General Code.

Amended House Bill No. 255 (117 Ohio Laws, 44) was an act to amend Section 2293-23b relative to limitation of issuance of bonds. The bill as amended carries most of the provisions of the original Section 2293-23b known as House Bill 124 (115 Ohio Laws, 442), heretofore referred to. In addition to the former provisions there is the further provision under the limitation that the section shall not apply to enumerated bonds, "or if such bonds are to be issued for the purpose of participating in any federal aid or any public works program or any work relief program aided in any way by the United States of America or any agency or instrumentality thereof, or for carrying forward any project incident to or necessary for the procuring of federal aid for a public improvement."

The amendment was passed as an emergency act and was approved March 16, 1937.

Amended Senate Bill No. 443 (117 Ohio Laws, 826) was passed to supplement Section 2293-14 by enacting Section 2293-14a. Section 2293-14a provides:

"Bonds authorized by vote prior to January 1, 1935, andhereafter issued for the purpose of constructing public improvements aided in any way by the United States of America or any agency or instrumentality thereof or for carrying forward any project incident to or necessary for the procuring of federal aid for such improvement, * * * shall at the time of issuance be exempted from all debt limitations. * * *" (Italics ours.)

This supplemental provision was passed as an emergency act and approved March 14, 1938.

Under leave of the court the plaintiff amended subsection "A" of subdivision 11 of the petition and subsection "G" of subdivision 11, and further the second paragraph of subsection "A" section 1 of the amendment. These amendments are quite long and set up in detail the facts which plaintiff claims bring the bond issue within the voiding conditions of Section 2293-23b, General Code. The court below in its opinion states on page 7:

"We believe therefore that the court will be warranted in considering paragraphs A, B and C as well as other allegations of substantially similar import, as being factual allegations as distinguished from purely legal conclusions and from this point on they will be so considered."

Counsel for defendants takes issue with this position as we will point out later.

The pith of the amendments to the petition, without setting out the special factual allegations, is that by October 3, 1934, the city by its issue of bonds had exhausted its power for the creation of indebtedness within the limitations of the Annat Act; that the bonded indebtedness of the city for a long period prior to March 3, 1937, continuously exceeded that allowed by law, and that the city had long prior thereto exhausted its right and power to issue any bonds including the municipal plant bonds under the provisions of the Annat Act, and had wholly used and exhausted its power and authority.

The final amendment to the petition alleges that by October 3, 1934, the city had exhausted its power for the creation of indebtedness within said limitation; that since July 6, 1936, the city, its officers and agents had been without right, power or authority to issue any Annat Act bonds under or by virtue of any election or the ordinances and resolutions described in the petition and particularly without any right, power or authority to issue any part of said municipal light bonds.

Counsel for the defendants says at the bottom of page 11 of his brief:

"Time and again throughout this answering brief, it is asserted that by the demurrer the city admits that it has exhausted its power to issue the bonds in question. This is not so. In the first place these assertions in the petition are not well pleaded. They are conclusions not warranted by good pleading. Only proper allegations are admitted by demurrer."

In view of the ruling of the court below, which we have heretofore quoted, we are inclined to the opinion that the allegations are of factual matters and not conclusions of law and that a demurrer admits their truth. If the facts pleaded are sufficient to bring the bonds within the voiding provision of Section 2293-23b, which provides that if the bonded indebtedness shall exceed that allowed by law "then none of said bonds or notes shall be issued and the authority to issue same by virtue of said election shall become void," the demurrer should be overruled unless the voiding provisions of the section are later withdrawn and the validity of the election restored.

Section 2293-14a provides that bonds authorized by a vote prior to January 1, 1935, and hereafter issued "for the purpose of constructing public improvements aided in any way by the United States of America * * * shall at the time of issuance be exempted from all debt limitations." (Italics ours.)

The question is therefore clearly presented as to whether a bond issue that has been authorized under existing authority by the vote of the people, but which by provision of an act in force at the time of the voting became void by reason of excessive bonded indebtedness, can be restored to vitality and be the basis of a legal issue of bonds through the device of a legislative exemption passed at a date subsequent to the time the bonds became void on account of excessive indebtedness.

The city in its reply brief discusses the matter at length. We shall quote a short part of the argument:

"By virtue of the vote of the people at the November election of 1933, by which the proposed issue was authorized, there was then and at that time established an existing fact which a future General Assembly could recognize and carry into effect regardless of any other intervening fact or legislation upon the subject."

The provision of Section 2293-14a is then alluded to and the further comment is made:

"The intent and purpose of this act is clear and unambiguous. The language used clearly authorizes the issuance of the proposed bonds exempt from all debt limitations. The language could not very well be more simply nor more plainly stated. There is absolutely no warrant for the attempted effort upon the part of counsel to create limitations on the effect of the language used. The Legislature recognizes and adopts a past existing fact, to wit: in this case the November, 1933, election approval. Upon this fact the General Assembly predicates authority to political subdivisions in clear and concise terms to issue certain future bonds."

Counsel states: "One General Assembly can not bind the legislative hands of a future General Assembly in such manner."

Counsel then cites a large group of cases which are principally directed to the principle that one Legislature can amend prior legislative enactments, and that this right is not subject to surrender or diminution but must remain the same in the General Assembly at each session.

Counsel states that the Legislature might temporarily destroy the effect of an existing fact, but could not destroy the fact itself. Quoting counsel again:

"Whatever the Legislature did subsequent to this valid election, it had the power to undo by future legislation. This the Legislature did when it passed Section 2293-14a, General Code, thereby recognizing and carrying into effect the vote of the people by which the proposed bond issue was authorized and which was valid at the time it was so voted."

Summarizing, the position is stated by counsel:

1. The city had a right to submit the proposed bond issue to a vote.

2. By the schedule such action is exempted from constitutional amendment.

3. The first paragraph of Section 2293-23b does not and can not apply to this proposed bond issue; the authority given by the election is continued in force by the limitation referred to; indebtedness is incurred at the time of the sale and delivery of the bonds and not at the prior time; and the exemptions in Sections 2293-23b and 2293-14a are in full force and effect and there is now no legal objection to the issue, sale and delivery of the bonds. It is asserted that the vote of approval of November, 1933, was exempted by the schedule to the constitutional amendment.

The court below discusses the question to which we have just alluded, and states in substance that even if House Bill No. 544 (116 Ohio Laws, 580) or any similar legislation could be construed retroactively such effect would be for the time being only and until Amended Senate Bill 443 (Section 2293-14a, General Code, 117 Ohio Laws, 826) became effective. The suggestion that House Bill 544, supra, "killed" the proceedings and what was thereby "killed" could not thereafter be revived is, the court states, without merit because inapplicable. House Bill 544,supra, did not and could not destroy, wipe out or annihilate the existing fact that pursuant to laws existing at the time the vote was had electors in fact had authorized the issue of the bonds by a majority which was all that was then required. The Legislature perhaps could temporarily destroy the effect but not the fact. Whatever the Legislature did subsequent to the vote it had the power to undo. Under the sections of the Constitution the General Assembly is supreme in the matter of restricting the powers of cities to borrow money, limited only by constitutional limits which were not exceeded by reason of the vote taken on the bonds. "And the General Assembly in enacting a new law may refer to and recognize a past existing fact and make the existence of such fact one of the conditions of the operation of the new act, and in so doing there is not involved the matter of making something alive which was once dead; it is only permitting something that was, subsequent to the vote, not permitted." This statement of counsel and of the court presents the right of the city in reference to these bonds in the strongest terms possible.

There are two minor arguments that we wish to discuss before taking up that which is the most serious.

The schedule attached to the amendment to Section 2, Article XII of the Constitution, provides (with our italicization), that it shall go into effect January 1, 1934, but the following enumerated levies shall not be subject to the limitation of one per cent established by such amendment. "(3) All taxlevies authorized prior to said date by vote of theelectors of any political subdivision of the state, pursuant to laws in force at the time of such vote, to be made for or during a period of years extending beyond January 1, 1934, which levies are outside of the present limitation of one and one-half per cent imposed by Section 2 of Article XII and the schedule thereto as approved on November 5, 1929 * * *."

It is claimed by the defendants that this schedule exempts the bonds that were voted for at the November, 1933, election, the same election at which the constitutional amendment was adopted.

Exemption No. 3 of the schedule relates to leviesauthorized by the vote of the electors.

It does not clearly appear from the petition whether the levy to provide interest and sinking fund was authorized by thevote. Certain provisions of Section 3 of Ordinance No. 317-33, adopted by council October 2, 1933, provides for levies for interest and sinking fund for the retirement of the bonds. However the ordinance was not sufficient to create the schedule exemption. The levy must be authorized by vote of the electors. A favorable vote on the issue of the bonds is not in itself an effective authorization of the levy so as to exempt the bonds. We may not say that the demurrer to the petition raises the question as to whether the bonds were exempt under the schedule. This must be reached by answer.

Under repealed Section 5649-9c, General Code (111 Ohio Laws, 336), the electors authorized the levy. See Bd. of Edn.of Ashville Village School Dist. v. Briggs, Aud.,114 Ohio St. 415, 151 N.E. 327. The schedule has reference to a levy authorized by vote and unless in the instant case the levy was authorized by vote as well as the issue of the bonds the bonds are not within the exemption provided by the schedule.

Further, the schedule relates only to tax limitations of one and one-half per cent or one per cent and in no way relates to debt limitations, an entirely different matter.

We are therefore of the opinion that the schedule attached to the constitutional amendment does not, so far as may be determined on demurrer, exempt the bonds from tax limitation.

There is another limitation in Section 2293-23b which seems to give some concern, but which we think, when properly analyzed, will be readily understood. The provision is that "no bonds authorized by vote of the people as prescribed in Section 2293-23 or notes in anticipation thereof shall be issued after the first day of the fourth January following the election on such proposition, but this period of limitation shall not be deemed to run for any time during which the project for which such bonds have been authorized, or any part thereof is involved in litigation * * *."

It is urged that the fact that this present bond issue has been in litigation in the federal court (which fact does not appear in the petition, and is consequently not before us) and in the state courts, so extended the life of the bonds that they could not be void for any other reason. A casual reading of the section discloses the fact that there are two limitations either of which may make the issue void: (1) It shall be void on account of an excess of indebtedness; (2) The bonds shall not be issued after the first day of the fourth January following the election, except that this period of limitation shall not be deemed to run on account of pending litigation. The Legislature wisely provided that if the bonds were not issued for a period of four years or slightly more then they should not thereafter be issued, but the Legislature recognized the fact that the issue might be prevented by litigation, and consequently extended this limitation to take care of the delay caused by litigation. But that did not in any way take care of the provision that the vote should be void on account of excessive indebtedness. The authority might become void on account of excessive indebtedness long before the expiration of four years or the four years may be extended on account of litigation far beyond the original limit and the bonds not be void on account of the expiration of time,if there was no excess indebtedness. In other words, the two limitations relate to entirely different matters, and neither rests upon the other.

If the vote which was required by the Constitution became void by reason of any legislative enactment, can it be restored to life by a subsequent enabling act of the Legislature?

There is no quarrel with the argument that one Legislature may repeal the act of a former Legislature, but the real question is whether when one Legislature declares an authority granted by a vote to be void, can a subsequent Legislature restore the validity of the vote by providing that the limitation shall not apply to the bonds or that the bonds authorized by a vote prior to January 1, 1935, and thereafter issued for the purposes named shall at the time of the issuance be exempted from all debt limitation.

We have already set out the argument of the city on this point and the opinion of the court below, in both of which there is much logic.

We think that in order to determine the correct view we may well take into consideration the provisions of the Constitution as well as the limitations heretofore imposed by statute on the issuing of bonds. One provision of the Constitution states that no property shall be taxed in excess of one per cent of its true value in money for all purposes but that laws may be passed authorizing additional taxes to be levied when approved by a majority of the electors. Another provision is that the General Assembly shall provide for the organization of cities and restrict their power of taxation in borrowing money and loaning their credit so as to prevent the abuse of such power. Still another section provides that laws may be passed to limit the power of municipalities to levy taxes and incur debts for local purposes. The people themselves, since the bond issues were voted in 1933, have imposed additional limitations through constitutional provisions. At that time property could not be taxed in excess of one and one-half per cent. That limitation has been reduced to one per cent. At that time the statute only required a majority of the votes to authorize the bonds. That proportion of the vote was increased at one time to 55 per cent and now stands at 65 per cent. There appears to have been some effort in the present Legislature to reduce the vote again to 50 per cent.

We can not escape the fact that the people, the Constitution and the Legislature have been constantly endeavoring to protect the taxpayer against the tax spender. The people are conscious of the fact that a very well-intentioned group of officials may desire to make certain very commendable expenditures but the people still wish to retain control of their own purse-strings to at least some extent.

The power to impose taxes should not be extended beyond the clear intendment of the statutes. Restraint is not usually exercised by the tax spender. The laws should, where their interpretation justifies it, be so construed to hold the spender in check. That is the manifest intent of the Constitution.

We are not concerned with the motive which led the people in 1933 to vote nearly a million dollars for the extension of the municipal light plant. Whether it was with the hope of giving necessary employment, the hope of getting cheaper electricity or because they were then not greatly concerned with expenditure, is none of our concern. We do, however, have the conviction that if the Constitution, the fundamental law, provides that certain things must be done in order to issue certain bonds, and the law at the time of the vote provided that the vote should be void in case of over indebtedness, and the authority of the vote has been pertinently challenged by the petition, it can not be again brought to life by a subsequent legislative enactment. In our judgment the only way to legally issue those bonds is to have a new vote under the terms of the Constitution and statutes as they may exist at the time the new vote is taken.

We realize that there is value in providing public works that will give men employment, but we can also well realize that those who will ultimately pay the bonds have a right to the protection of the constitutional provision that no property shall be taxed in excess of the rate provided for unless the additional indebtedness shall be voted for by the people. There is nothing in the Constitution that prevents the expenditure of the city's money for a light plant, provided it does not require the taxation of property beyond a certain amount.

Judge Jones, in the case of State, ex rel. City of Dayton, v.Bish, Aud., 104 Ohio St. 206, at page 214, 135 N.E. 816, states:

"The provisions of our present Constitution, providing that ``no tax shall be levied, except in pursuance of law,' and that ``laws may be passed to limit the power of municipalities to levy taxes and incur debts,' have been construed, in the cases named, and these provisions of the Constitution are just as effective in limiting the power to incur debts as in limiting the power to levy taxes."

On page 215 Judge Jones speaks of matters that arose during the increasing war prices, and his statements so well describe the situation now confronting us, due to depression and unemployment, that we think they are well worth quoting:

"In recent years there have developed recurrent contests, evidenced by legislation, between the forces demanding greater leeway for municipal expenditures and those favoring greater retrenchment and a limitation of taxation. This situation has resulted in the adoption of a legislative hodge-podge affecting the municipal authority to incur debts and to levy taxes for their payment. The rising values resulting from the recent war have made the financial situation of municipalities more acute, and, failing to obtain legislative action, appeal is made to the courts for relief. This court, no less than the municipalities of the state, must be governed by the provisions of our present Constitution, which, in matters of taxation, have subjected the municipalities of this state to the absolute control of the General Assembly. If the Legislature has provided that an appeal must be made to the electorate before the municipal authorities can levy local taxes outside of the ten-mill limitation, then the municipality must submit that appeal to the people."

To this the answer may be made that the city recognized this condition and submitted the question to the electors who endorsed the issue of bonds. That answer would be perfectly good were it not for the fact that the Legislature also provided tax limitations which when reached destroyed the authority of the vote. The question we have before us is whether that authority, having been destroyed, may be restored by an act of the Legislature which in itself impinges upon the constitutional provision.

And further, Judge Jones states at page 212:

"The Constitution has laid a restraining hand upon all municipalities, chartered or unchartered. It has specifically retained legislative control over municipalities by restricting their power to levy taxes or to incur debts. * * * The municipal powers, to incur debt, and to levy taxes for its payment, are closely interwoven. The Constitution recognizes this by interposing a check upon both. * * * Likewise, the city is restricted in its powers to levy taxes, but there also it must bow to the sovereign power of the state by confining its power within the limitations provided by law."

We do not endorse the proposition that the vote taken in 1933 became a fixed fact upon which the Legislature can play fast and loose; part of the time, to declare the vote is authority to issue bonds, then to declare that it is not an authority to issue bonds and afterwards to again declare that it is such authority. The Constitution controls and not the Legislature.

There is another matter which has not been stressed in the plaintiff's petition nor discussed by the defendants, which, in our judgment, requires careful consideration.

Section 2, Article XII of the Constitution, provides in substance that no property taxed according to value shall be so taxed to exceed one per cent of its true value in money for all state and local purposes. It further provides that laws may be passed authorizing additional taxes outside such limitation in two methods:

1. Either when approved by at least a majority of the electors of the taxing district; or

2. When provided by the charter of a municipal corporation.

We again revert to the statement of Judge Jones in State, exrel. City of Dayton, v. Bish, Aud., supra, where the judge says, on page 214:

"The provisions of our present Constitution, providing that ``no tax shall be levied, except in pursuance of law,' and that ``laws may be passed to limit the power of municipalities to lexy taxes and incur debts,' have been construed * * * [to the effect that the] provisions of the Constitution are just as effective in limiting the power to incur debts as in limiting the power tolevy taxes." (Italics ours.)

We arrive at the conclusion that there is a very definite constitutional limitation upon the levying of taxes beyond the limits named in the Constitution.

"The provisions of * * * [the] Constitution * * * are just as effective in limiting the power to incur debts as in limiting the power to levy taxes." State, ex rel.City of Dayton, v. Bish, Aud., supra. (Italics ours.)

The position taken by the court in the Bish case was again under consideration in State, ex rel. City of Portsmouth, v.Kountz, Mayor, 129 Ohio St. 272, 194 N.E. 869, 97 A.L.R., 1099, the second paragraph of the syllabus of which is:

"A constitutional provision imposing a tax limitation, by implication also imposes a debt limitation."

This case while frankly concerned with "unvoted" general-obligation bonds of the city is replete with pertinent observations which may be applied to the situation we have before us of the attempt to restore vitality to the authority of the vote which the Legislature has declared to be void. On page 276 the court, through Judge Day, makes this observation:

"Such provision, however, cannot legally be made if the proposed taxation, when added to the taxation already existing, exceeds one per cent of the valuation of the taxable property."

And on page 277:

"However, a constitutional provision imposing a tax limit, by implication, does impose a debt limit, on the theory that the greater includes the lesser, that the power to spend is circumscribed by the power to collect. * * *

"The power of the tax spender has been definitely limited by the taxpayer. The power of a municipality to borrow is now definitely limited. A municipal corporation cannot incur an indebtedness beyond the limits imposed by law, without a vote of approval by the duly qualified electors residing within its territorial confines."

As stated before, this case is devoted to the non-voted bonds, but we think it is pertinent, for the reasons we have stated.

The Legislature, under the stress of the depression and for the purpose of providing funds to carry out federally endorsed projects, has provided certain exemptions in Sections 2293-23b and 2293-14a, General Code. The limitation shall not apply to bonds issued in aid of any public works program or any work relief program aided in any way by the United States of America, as set out in Section 2293-23b and bonds authorized by a vote prior to January 1, 1935, thereafter issued for the purpose of constructing improvements in any way aided by the United States, shall at the time of the issuing be exempted from all debt limitations as provided by Section 2293-14a.

It seems to us that the Legislature, in its zeal to raise the money for relief purposes, has overlooked the protective provisions of Section 2, Article XII of the Constitution, relating to the limits of taxation.

"The provisions of * * * [the] Constitution * * * are just as effective in limiting the power to incur debts as in limiting the power to levy taxes." State, ex rel. City of Dayton, v. Bish,Aud., supra.

In our judgment, the Legislature has not the power to extend the provisions as to limitation by the two statutes above referred to, so as not to apply to bonds issued for federal aid,when the money necessary to pay those bonds would impose upon thetaxpayers a greater burden than is permitted by the Constitution.

If this device were endorsed, then the protection against excessive taxation could be overthrown by the mere device of making the bonds or indebtedness incurred not subject to limitations. The Legislature can change limitations which the Legislature itself has imposed, but the limitation that the Constitution has imposed can not be changed except as provided by the Constitution, and that is by a vote of the people. The limitation as to bonds issued for federal aid was not in effect at the time the vote was taken, and we are of the opinion that the Legislature may not now increase the burden upon the taxpayers by the easy device of declaring that certain bonds are not within the limitation, which is a limitation imposed by the Legislature, and disregard the limitation that is imposed by the Constitution itself. As above stated, if this were permitted, the Legislature could destroy the protection erected by the Constitution limiting the rate at which property may be taxed by simply enacting that certain indebtedness shall be outside the limitation. Back of all this stands the Constitution itself, which limits the taxes, and that limitation is just as effective in limiting the power to incur debts as in limiting the power to levy taxes.

The principles that are pertinent to the correct interpretation of laws relating to taxation are so well known that they need only to be mentioned. A good statement is found in the case ofCity of Cincinnati v. Connor, 55 Ohio St. 82, at page 91,44 N.E. 582:

"Another principle applicable here, leads to the same conclusion. The rule generally prevails that, independent of any legislative requirement on the subject, statutes imposing taxes and public burdens of that nature are to be strictly construed; and where there is ambiguity which raises a doubt as to the legislative intent, that doubt must be resolved in favor of the subject or citizen on whom the burden is sought to be imposed."

In paragraph three of the syllabus of State, ex rel. City ofToledo, v. Cooper, Aud., 97 Ohio St. 86, 119 N.E. 253, it is stated:

"Taxation is a sovereign function. The rule of liberal construction will not apply in cases where it is claimed a part of the state sovereignty is yielded to a community therein. It must appear that the people of the state have parted therewith by the adoption of a constitutional provision that is clear and unambiguous."

This case may not be as pertinent as others, but it is to the effect that any diminution of the sovereign function of taxation must appear in a clear and unambiguous constitutional provision. In the case of Bd. of Edn. of AshvilleVillage School Dist. v. Briggs, Aud., supra, it is held that the statutes providing for a vote upon a bond issue are mandatory and must be substantially complied with. Judge Matthias, on page 421, quotes to the effect that mandatory statutes are imperative and must be strictly construed. On page 422 he again quotes: "``What the law requires for the protection of the taxpayer, for example, is mandatory, and cannot be regarded as directory merely.'"

Judge Matthias then states:

"The decisions seem quite uniform in holding that those measures which are intended for the security of the citizen, or for securing equality of taxation, or to enable one to know with reasonable certainty for what real and personal property he is taxed, are conditions precedent and are mandatory * * *."

In the case of City of Barberton, ex rel. Platt, v. Dutt, Aud.,22 Ohio App. 200, 153 N.E. 900, the court, speaking of the requisites of the notice to be given for the issuance of bonds, says that the provisions are mandatory, "and a failure to comply with that requirement of the section invalidates the election." In speaking of the matter on page 203, the court states:

"It involved the question of waiver of the tax-limitation law, the barrier erected to protect taxpayers from the burden of an ever-increasing tax rate, and in such a situation it is the duty of the courts to afford to the taxpayer the full protection of laws passed for his benefit."

In speaking of tax limitation, it is stated in 38 Ohio Jurisprudence, 743, Section 23:

"These provisions, having been enacted for the protection of the taxpayers, are mandatory, except where an emergency exists; and substantial compliance, as well as strict construction, is necessary."

The sum of all this is that there is a barrier erected for the protection of the people by reason of the Constitution which may not be disregarded, and that statutory proceedings must be strictly construed in favor of the taxpayer.

We are of the view that the method adopted by the Legislature for re-establishing the authority for a voided vote does not meet the constitutional requirement, and further that a constitutional provision imposing a tax limitation, by implication also imposes a debt limitation.

As the petition is written we are unable to say definitely whether any issue is made as to the validity of the election, although there are some allegations which seem to so indicate. Sections 2293-19 to 2293-23, General Code, provide the machinery for the vote and are highly technical. The provisions were somewhat more liberal under the law in force at the time of the election. (115 Ohio Laws [Pt. 2], 80.)

That all the provisions of the election machinery are mandatory and must be substantially complied with, else the vote will be void, clearly appears from Bd. of Edn. of Ashville Village SchoolDist. v. Briggs, Aud., supra, and City of Barberton, ex rel.Platt, v. Dutt, Aud., supra.

However, we can not say that the question has been raised by the petition and demurrer and we therefore refrain from passing upon it.

So many statutes with amendments and supplements thereto have been cited that for convenience we re-state where they may be found:

House Bill 124, supplementing Section 2293-23 by enacting Section 2293-23b, General Code, 115 Ohio Laws, 442; Amended Senate Bill No. 403, 115 Ohio Laws, 601; Amended Substitute Senate Bill No. 38, 115 Ohio Laws (Pt. 2), 80; House Bill No. 544 (Amend Annat Act), 116 Ohio Laws, 580; Amended House Bill 255, amending Section 2293-23b, 117 Ohio Laws, 44, also House Bill 862, amending Section 2293-23b, 117 Ohio Laws, 867; Amended Senate Bill No. 443, enacting Section 2293-14a, 117 Ohio Laws, 826.

For the reasons stated, we are of the opinion that, as the demurrer admits the allegations of the petition which definitely raise the issue of exceeding the tax limitation which would render the vote void, the demurrer should be overruled.

Judgment reversed and cause remanded.

BARNES, J., concurs in judgment.

HORNBECK, P.J., dissents.