
    The State, ex rel. The Village of Leipsic, v. Moenter, Auditor, et al.
    
      Taxation — Township road improvements< — Sections 6926 and 6928, General Code — Jurisdiction of budget commissioners — Limitation of levies — Section 5649-Sb, General Code — Taxes and assessments distinguished.
    
    1. The proportion of the cost and expenses levied upon the grand duplicate against the taxable property of a township, for the construction of road improvement, under . Sections ' 6926 and 6928, General Code, is a tax and not an assessment.
    2. Levies made for the payment of such improvements are within the control of the budget commissioners, and the same are subject to the fifteen-mill aggregate limitation provided for in Section 5649-5&, General Code.
    (No. 16134
    Decided December 17, 1918.)
    In Mandamus.
    The relator, invoking the original jurisdiction of this court, prays for a writ of mandamus commanding the auditor of Putnam county, Ohio, to place a sufficient levy on the tax duplicate of the village of Leipsic to provide the necessary funds for that village for the year 1918, and that he levy the sum asked for in his budget in excess of the 2.30 mills levied for stone road purposes hereinafter referred to.
    To this petition defendants enter a! general demurrer.
    From the conceded facts it appears that during the times beginning April, 1910, and ending April, 1915, the commissioners of Putnam county awarded contracts for the construction of ten separate roads in Van Burén township in that county. Van Burén township includes the village of Leipsic. Six of these roads were constructed under the then existing law known as the Garrett act, the other four were constructed during the years 1914 and 1915. In each case the county commissioners ordered two-thirds of the cost to be paid from the proceeds of levies upon the grand duplicate of the county against the taxable property of the township and one-third from assessments against the owners of the real estate within one mile of the improvement, and bonds were issued for various sums in anticipation of the collection of these assessments against the land-owners and the annual levies against the township. Various, amounts are now outstanding and unpaid for the construction of the several road improvements, including amounts due and payable in the year 1918.
    In the preparation of its budget for that year the village submitted its budget to the budget commission of Putnam county, asking for various amounts for the several funds of the village. The commission allowed said budget as submitted and transmitted it to the Tax Commission of Ohio for its approval. The state commission refused to approve said budget as submitted, and remanded the same to the budget commission of the county with instruction to reduce the rates in the village. The several sums asked for in the village budget for municipal purposes did not exceed the rate of 5 mills; the total of said budget for general purposes, for state, county, township, school district and village, did not exceed 10 mills; and the total levy for all purposes did not exceed 15 mills, excludiñg the smallpox epidemic levy of 1.10 mills for the village and the 2.30 mills levy for the special stone road improvement fund for the township. This latter item is the levy contained in the budget against the taxable property of the township and village, for the purpose of paying the bonds coming due in 1918, with the interest thereon. As submitted and approved by the county budget commission the total rate for all combined purposes aggregates 18.60 mills. While the item of 2.30 mills for stone road improvement was retained by the action of the state tax commission, it ordered the county budget commission to reduce certain levies for other funds of the village and village school district until the same, including also those of state, county, township and the stone road improvement levy, aggregated a total rate of only 16.40 mills for all purposes.
    
      Mr. A. A. Slaybaugh, for relator.
    
      Mr. Joseph McGhee, attorney general; Mr. William J. Ford, special counsel, and Mr. Harry S, Core, prosecuting attorney of Putnam county, for respondents..
   Jones, J.

The tax levies sought to be made were for the purpose of paying bonds for road improvements constructed under Section 6926 et seq. General Code. It is conceded that the total aggregate levies for all purposes, including the 2.30 mills for the special stone road improvement fund, amounted to the sum of 18.60 mills.

For the purpose of this case it is not necessary to decide whether these levies are subject to any other limitation than the 15-mill limitation of the Smith one per cent. law. Prior .to the enactment and amendment of recent tax laws, especially that one commonly known as the Smith one per cent, law, levies of this character were permitted to be made “in addition to all other levies authorized by law, notwithstanding any limitation upon the aggregate amount of such levies now [then] in force.” (94 Ohio Laws, 98-99, Sections 5 and 6). This provision of the law became Section 6945, General Code.

Undoubtedly the legislative policy with reference to road improvement, and the payment therefor by the issuance of bonds and the levy of taxes, assumed an important change in later efforts to provide limitation upon the amount of such levies. By its act of April 8, 1913 (103 O. L., 198), amending Section 6945, General Code, the legislature provided that such levies should “be in addition to all other levies authorized by law for township purposes, but subject to the maximum limitation upon the aggregate amount of all levies now in force” Section 6950 as amended by the same act provides that the levy for the payment of principal and interest of bonds issued for road improvement might be “in addition to any levy now authorised by law, but subject to the aggregate limitations provided by law ” In the year 1913 the same general assembly reenacted the road-law sections above referred to and also amended the Smith one per cent, law in important particulars, by providing explicitly that the combined maximum rate for all taxes in certain taxing districts, including taxes for sinking fund and interest purposes, should not exceed 15 mills. This law, enacted in 103 Ohio Laws, 57, now comprises Section 5649-5b, General Code, and is as follows:

“If a majority of the electors voting thereon at such election vote in favor thereof, it shall be lawful to levy taxes within such taxing district at a rate not to exceed such increased rate for and during the period provided for in such resolution, but in no case shall the combined maximum rate for all taxes levied in any year in any county, city, village, school district, or other taxing district, under the provisions of this and the two preceding sections and sections 5649-1, 5649-2 and 5649-3 of the General Code as herein enacted, exceed fifteen mills.”

Section 5649-1, referred to in the act, then provided that “In any taxing district the taxing authorities shall levy a tax sufficient for sinking fund and interest purposes.” The only amendment in the act (103 O. L., 57) that changes its former reading is the inclusion of Section 5649-1, and evinced the purpose of the legislature of providing that, while certain taxes for sinking fund and interest might be imposed under Section 5649-2 in addition to the taxes there provided for, the combined maximum rate for such purposes should not exceed the 15-mill aggregate.

•' Indisputably it is within the function of the legislative power of-the state to curb and control its local governmental agencies in the matter of taxation,

and it has been held that the foregoing provisions of the Smith law “limit the rate of taxes that can be levied in any taxing district for any and all purposes.” (Rabe v. Board of Education, 88 Ohio St., 403.) The provision of the section quoted is so plain and unambiguous that it is impossible to escape its effect. Since the passage of the legislation just referred to, still further evincing its purpose to circumscribe the power of taxation for sinking fund and interest purposes, the legislature amended Section 5649-1 (104 O. L., 12) by providing that “In any taxing district, the taxing authority shall, within the limitations now prescribed by law, levy a tax sufficient to provide for sinking fund and interest purposes for bonds issued,” etc.

Section 5649-2, General Code, in addition to the 10-mill exterior limitation there imposed, provides for certain levies additional for sinking fund and interest purposes, but this provision is of course* further limited by the express provision of Section 5649-5b, to the effect that the maximum rate for all combined purposes shall not exceed 15 mills.

Apparently conceding the legal phase of the question heretofore considered, counsel for the relator insists, however, that the 2.30 mills levied by the county commissioners is not a tax but an assessment, and that this road levy is especially exempted from the 15-mill limitation, under the provisions of Section 5649-3a, General Code.

Section 6928, General Code, provides that a portion of the cost and expense of the road improvement shall be paid out of the proceeds of levies upon the grand duplicate of the county against taxable property of the township, the balance of the cost and expense to be assessed upon and collected from the owners of the real estate, and from the real estate benefited by the improvement, in proportion to the benefit.

By the language of the statute it will be seen that the latter' is not only an assessment in expressed terms, but is so in fact, and based upon proportional benefits to the real estate, while the former, the levy upon the grand duplicate of the county upon the taxable property of the township, is made irrespective of whether benefit accrues or not, and is upon the entire property of the township, both real and personal. The distinction between the two is well stated in the first proposition of the syllabus in Lima v. Cemetery Association, 42 Ohio St., 128, which is as follows:

“In a general sense, a tax is an assessment, and an assessment is a tax; but there is a well-recognized distinction between them, an assessment being confined to local impositions upon property for the payment of the cost of public improvements in its immediate vicinity, and levied with reference to special benefits to the property assessed.”

It is further contended, however, that this levy for the stone road improvements is exclusive of limitations under the provisions of the latter portion of Section 5649-3a, General Code, which proAddes that the interior limitations there imposed shall be exclusive of “levies and assessments in Special districts created for road” improvements. It is sufficient to say that a township is a political subdivision and is not a special district within the meaning of that section. At the time of the enactment of this section there were code provisions relating to the creation of special road districts., such as the one-mile turnpike or the two-mile turnpike law, and it is very evident that the section can refer only to assessments in special districts which are excluded from the operation of the tax-limitation laws and from . control of the budget commissioners, and where the entire district in which the assessment is made receives some proportional benefit.

The demurrer to the petition is sustained and the writ denied.

Writ denied.

Nichols, C. J., Newman, Matthias .and Johnson, JJ., concur.  