
    TAXES LEVIED UNDER. A SPECIAL STATUTE.
    [Circuit Court of Franklin County.]
    Ellis O. Jones, a Tax-payer, etc., v. The Board of County Commissioners, Franklin County, Ohio, et al.
    Decided, November 23, 1903.
    1. Whether Section 2823a, relating to the levying of taxes for certain purposes, and applicable to Franklin county, was inconsistent with the provisions of the Municipal Code of 1902 is a matter of opinion, and one ás to which members of the Legislature may have held different views, but that, after consideration, a conclusion to repeal this section was reached, there seems to be no reason'to doubt, and hence it can not be said that its repeal was through inadvertance or mistake.
    
      Taxation — Levies for County and Bridge Purposes under Section"2823 —Reduction of other Levies — Section 2823a not Repealed hy Mistake.
    
    2. Section 2823a having been repealed, the commissioners of Franklin county were limited in the making of tax levies in the year 1903 for county and bridge purposes to the authority found in Section 2823.
    Sullivan, J.; Summers, J., and Wilson, J., concur.
    Heard on appeal.
   Omitting the averments of the petition setting forth the official capacity of the several defendants and proceeding at once to state the substance of the several averments upon which plaintiff claims the relief he prays for, upon behalf of himself and other tax-payers of Franklin county, Ohio, which are as follows:

First, that the population of Franklin county on the 3d of June, 1903, was 164,000.

That the tax valuation of all property of said county was more than $80,000,000, and less than $100,000,000, being about $90,000,000.

That said county commissioners on said date made a tax levy of 5 mills and 85 hundredths on the taxable value of all property in Franklin county, by the adoption of a resolution by said board, one-balf of the tax to be paid December 20th, 1903, and the last half June 20th, 1904, and in which was included levies for the following purposes:

1st. Two and four-tenths mills, county purposes.

2d. One and four-tenths mills, bridge fund.

3d. One and forty-five one-hundredths mills, payment of bonds and interest.

That the foregoing, together with other levies for the various purposes designated in the resolution, made the total 5 85-100 mills upon all the taxable property of Franklin county, for the fiscal year of 1903. No other levies were made for said year.

It is averred that the defendant county auditor is preparing a tax duplicate for Franklin county, and that he will make up a complete list of all taxable property in said county in the form of a tax duplicate, and under said resolution levy upon all such property said 5 85-100 mills, and will determine the amount of taxes which may be assessed and levied against each dollar of valution of such taxable property including plaintiff’s, thereby casting a cloud upon the title to all of said taxable property, and when complete will deliver said duplicate to the defendant county treasurer for collection, who will proceed to collect the same. Whereby the plaintiff and all other tax-payers of said county will suffer an irreparable injury.

It is averred that said levy was made under Section 2823a of the Revised Statutes of Ohio. That said levy is illegal, unconstitutional, fraudulent and void, for the following reasons:

1st. Because the section under which said levy was made was repealed by the General Assembly of Ohio on October 22d, 1902.

2d. That said section was a special act relating alone to Franklin county, and hence in contravention of Section 26, Article II; Section 1, Article XY; Section 5, Article X; Section 5, Article XII of the Constitution of the state, because said act conferred corporate power, and the subject of taxation is of a general nature, and said section is not legislative, but judicial and administrative; that the several items of said levy herein-before set forth exceed the authority of the statutes in force at the time the same was made, no emergency existing at the time.

Plaintiff therefore prays that said auditor be enjoined from making- the duplicate as above described and delivering same to the county treasurer, and the latter be enjoined from collecting said illegal levy, or so much thereof as may be in excess of the power of the county commissioners to make; that said excessive levies may be declared to be illegal, and void, and for such other and further relief that plaintiff and other tax-payers upon the facts shown may be entitled to; and upon the final hearing that said injunction to the extent of said excess might be made perpetual.

The petition in effect assails the entire levy, but as counsel for plaintiff in argument insisted upon such relief as might be granted should it relate only to and affect the three several items above stated, they have alone been considered. To this petition a general demurrer is filed. Counsel for defendant concede that no levy can be made by the commissioners not authorized by express statute, so that the inquiry is whether the statutes in force at the time the levy was made authorized the amount of levies made for the several purposes above mentioned.

In support of the demurrer, counsel for defendants insist that 2823a, under which said levies were made, is not repealed by the act of October 22d, 1902, though it appears among the repealed sections, for that it is manifest from the title of the act of October, 1902, that its appearance in the list of repealed statutes is a mistake. The title of the act of October 22d, 1902, reads as follows:

“An act to provide for a reorganization of cities and incorporated villages, and restrict their power of taxation, borrowing money, contracting debts and loaning their credit, so as to prevent an abuse of said powers as required by the Constitution of Ohio, and to repeal all statutes inconsistent herewith. ’ ’

There are 231 sections contained in the act, each section representing a different subject in municipal affairs, and counsel for defendants contend that Section 2823a neither relates to or affects any affair pertaining to municipalities, and therefore is not inconsistent with any of the provisions of the act of October 22, 1902, and hence furnishes an additional fact in support of their claim, that the repeal of 2823a was a mistake; that Section 2823a bore no relation to the conditions, which the General Assembly ought to relieve, but related solely to the. power of County Commissioners of Franklin County to levy a tax and apportion the same, and therefore is not inconsistent with any provision of October 22d, 1902. Hence it can not be said it was included in the title to the latter act.

We have had a judicial construction of Section 16, Article II, of the Constitution, which provides “that no bill shall contain more than one subject, which shall be clearly expressed in the title.” It is only necessary to call attenton to one case as that fully amplifies the judicial construction given the section and. the recognized reason for such construction. Ohio, ex rel Atty. Genl., v. Covington et al, 29 O. St., 102:

“The requirement of the section is not mandatory, but directory — this construction is a rule of decision and based upon grounds of expediency. It is amply recognized by all courts of law and the reason of the rule is that less injury results by disregarding than by enforcing the letter of the law.”

So that if Section 2823a was not inconsistent with any of the provisions of the act of October 22d, 1902, the fact that the intention to repeal it was not expressed in the title of the bill eould not be considered as supporting the claim that its appeal was a mistake. The power of the legislative body to repeal an' act must be conceded, though no reason be assigned for the repeal, or if one is given, and it appears wholly insufficient, the repeal is still just as effective. We think therefore, though said section may not fall within the class of those inconsistent with the act of October 22d, 1902, yet that fact could not be sufficient to supply the requirement of the rule observed by courts in correcting .mistakes in statutes, which is as follows: . .

“The claimed * * * errors must., be ..manifest, beyond doubt, either on the face of the act, or when read in connection with other statutes, in pari materia,” (State, ex rel, v. Archibald, 52 Ohio State, p. 9).

Section 2823a is repealed by reciting the full substance of the section, which alone would seem a sufficient answer to defendants’ claim that its repeal was a mistake, and a sufficient reason-for the court declining to consider the question, whether the act was not inconsistent with any of the provisions of the act of October 22d, 1902. But can it be said that it is not inconsistent ?

Under Section 860, of the Revised Statutes, the city of Columbus is not entitled to demand any part of the bridge fund levied by the county commissioners arising from the levy upon the taxable property of the city. Section 7, paragraph 18 of the act of October 22d, 1902, confers power upon council to control, improve, keep in order and repair, streets, bridges, etc., within the municipality, and Section 28 provides that council shall have the care, supervision and control of public highways, bridges within the city, and shall keep them in repair; and Section 9 authorizes a levy for such purposes. It would seem from these several sections of the code that repair of bridges and public roads and perhaps construction of same, within the city limits and raising funds for such purposes, was to be transferred to the municipality, and if so, to this extent at least, 2823a would be inconsistent with the provisions of the code cited.

Paragraph 18 of Section 7 of the code expresses no distinction as to bridges already constructed and those constructed after the code went into effect, so that it would seem that the entire burden at least of keeping such structures in repair within municipalities would rest alone upon them. Whether 2823a is inconsistent with any of the provisions of the code would be a matter of judgment alone and a question upon which perhaps there might appear strong reasons for a difference of opinion between members of the legislative body, but that a conclusion to repeal it was reached after a consideration of the section there seems no reason for doubt, and hence the repeal was not through inadvertence or mistake.

This brings us then to the next question. If 2823a was repealed, what, if any, authority did the commissioners then have to levy a tax for the several purposes contained in the resolution-of June 3d, 1903? Section 2823a and the amendment thereto of April, 1902, was a supplementary act to 2823, and it provided that no levies specifically authorized by statutes should be included within the limits fixed in the supplementary act, and therefore it did not repeal 2823. By the latter section they are authorized to levy for county purposes seven-tenths of a mill, and for bridges, under 2824, five-tenths of a mill, and Section 2823 provides that whenever in any county the levy provided for in the first section of 2823 is deemed insufficient for general county purposes the commissioners may increase said levy by any amount not exceeding six-tenths- of a mill on the dollar valuation, but in such cases the levies for other purposes shall be reduced to the same extent, or that the total levies for all purposes shall not exceed the limits provided in the title and chapter in which said sections appear. The limit for all purposes in the chapter is one and eight-tenths mills, except where it became necessary to levy an additional tax to repair or rebuild county infirmary buildings, children’s home buildings, etc., that may have been destroyed by fire or other casualty, and then the amount raised should not exceed $10,000.

The one and eight-tenths mills is divided as follows: County purposes, seven-tenths of a mill; infirmary purposes, six-tenths of a mill; bridge purposes, five-tenths of a mill.

Counsel for plaintiff contend that when the commissioners levy six-tenths of a mill provided for by Section 2823, because the levy of seven-tenths of a mill is insufficient for general county purposes, and made levies for any other purpose provided for by 2823 and 2824, that to the extent of six-tenths of a mill such levies must be reduced, and that the commissioners not having made any other levy under chapter 5 but for county general expense fund and bridge fund, therefore a reduction should be made in the bridge fund. We do not so understand these sections of the statute.

Under Section 2823, commissioners are authorized to levy for infirmary purposes six-tenths of a mill. They did not make such levy in this instance, and the levy for county purposes and the bridge fund and the six-tenths of a mill provided for in the concluding provision of Section 2823 did not exceed the amount of levy the commissioners were authorized to make. We understand that the purpose of the provision in Section 2823, providing for the reduction of other levies when seven-tenths of a mill for county purposes has been made and the commissioners should levy the six-tenths of a mill in addition, is to prevent the county commissioners from exceeding the limit of the levy for all purposes provided for in Chapter 5. Therefore the commissioners were authorized to levy for county purposes one and three-tenths of a mill, and for bridge purposes five-tenths of a mill, to which rate these two several levies will be reduced.

M. E. Thraillcill, for plaintiff.

Taylor, Seymour & Webber, for defendant.

Counsel for plaintiff contend that the levy of one and forty-five one-hundredths mills for the bond redemption fund will yield a sum largely in excess of that required to pay the maturing bonds and interest thereon maturing in the year 1904. He claims that the estimate made by the county commissioners, including interest and the amount of such bonds, is $113,530, but that the levy made will yield a sum of over $130,500.

The petition does not set forth the amount of the maturing bonds of 1904, and the accruing interest thereon; and as the questions presented here are on a general demurrer to the petition, and as to whether the amount claimed by plaintiff is correct, being a question of fact, the court in considering the general demurrer to the petition can not pass upon that question.

We are therefore of the opinion that the judgment of the court below upon the demurrer was correct, and the same judgment will be entered here at defendant’s costs. In view of these conclusions, the claim that Section 2823a was unconstitutional becomes wholly immaterial and therefore unnecessary to be determined.  