
    The State, ex rel. Menning et al., County Commissioners, v. Zangerle, Auditor.
    
      Taxation — Limitation of levy — Sections 5649-2 to 5649-56, General Code — Exemption statutes strictly construed — Emergency levies — Sections 5649-4 and 7419, General Code — Confined to extraordinary conditions, when — Road levy not exempt, when.
    
    1. In view of the legislative policy declared by the enactment of the so-called Smith one per cent, law (Sections 5649-2 to 5649-56, ■General Code), the manifest purpose of which is to restrict the power of levying taxes and thus limit expenditure by administrative officers, statutes purporting to permit departures from that general policy and authorizing exemption therefrom ’will be strictly construed.
    
      
      2. Section 5649-4, General Code, is not a legislative declaration that all the conditions enumerated in Section 7419, General Code, are emergencies' for which taxes may be levied in excess of the limitation prescribed.
    3. Exemption from the restriction fixed by such law applies only in favor of levies required to meet extraordinary conditions resulting from some unexpected or unforeseen occurrence or circumstance, such as the destruction of. or damage to a principal highway by freshet, landslide, wear of watercourses or other casualty.
    4. Neglect or inattention of public officers to repair highways does mot constitute an emergency, and a levy of taxes for the purpose of meeting the expense of reconstruction, repair and maintenance of roads which, by reason of such neglect and inattention, or by reason of a large amount of traffic thereon, have become gradually worn out and unfit for travel, even though they cause difficulty, danger or delay, is not exempt as an emergency levy.
    (No. 15361
    Decided October 11, 1916.)
    In Mandamus.
    This is a proceeding in mandamus instituted in this court by the relators, Joseph Menning, F. T. Andrews and Pierce D. Metzger, who are the county commissioners of Cuyahoga county, Ohio. In their petition they aver that on June 21, 1916, the board of county commissioners of said county adopted the following resolution:
    
      "Be It Resolved by the Board of County Commissioners of Cuyahoga County, Ohio, that it is hereby found and determined that by reason of neglect and inattention to the repair of the highways hereinafter enumerated, said highways have become unfit for travel and cause difficulty, danger and delay to teams passing thereon; that said highways are some of the principal highways of the County; that the ordinary levies authorized by law are inadequate' to provide money necessary to make the changes and repairs in such roads as are rendered necessary by reason of such neglect and inattention; and that it is necessary to levy a tax upon all taxable property of the County to be expended for the construction, reconstruction, repair and maintenance of said roads. Said roads, with the amount necessary to levy in case of each road, are as follows: (Here follows a list of twenty-four highways with the location and boundary of each.)
    
      "Be It Further Resolved that there shall be and hereby is levied upon all taxable property of the County, for the purposes hereinbefore enumerated, the sum of $600,000.00, to be expended for the construction, reconstruction, repair and maintenance of said roads.”
    Relators further aver that the highways enumerated are some of the principal highways of the county of Cuyahoga and that by reason of the large amount of traffic thereon and by reason of neglect and inattention to repairs thereof said highways have become unfit for travel, and cause difficulty, danger and delay to teams passing thereon; that the ordinary levies authorized by law for such purposes will be inadequate to provide money necessary to make the changes and repairs in such roads required by reason of the causes enumerated, and that in order to make such changes and repairs it will be necessary, as provided in said resolution, to levy a tax in the sum of $600,000 in excess of any of the limitations provided in Sections 5649-2 to 5649-5&, General Code; that said levy was certified by said board of county commissioners to the respondent, John A. Zangerle, as county auditor, to be by him placed upon the tax list for levy upon all the taxable property in said county, in excess of the limitations provided in Sections 5649-2 to 5649-5&, General Code; and that the respondent refuses so to do.
    The prayer is for a writ of mandamus, commanding the respondent, as such auditor, to place upon the tax list of Cuyahoga county, Ohio, a levy in excess of the limitations provided in Sections 5649-2 to 5Ó49-5&, General Code, sufficient in amount to provide the sum of $600,000 for the construction, reconstruction and repair of the roads designated and described in said resolution.
    The case was presented to this court upon demurrer to the petition, the respondent contending that the facts set out in the petition do not entitle the relators to the relief sought.
    
      Mr. Richard H. Lee, for relators.
    
      Mr. Cyrus Locher, prosecuting attorney; Mr. Frederick W. Green, assistant prosecuting attorney; Mr. Edward C. Turner, attorney general, and Mr. H. C. Sherman, for respondent.
   Matthias, J.

The resolution of the county commissioners, declaring the necessity for the levy of a tax in the sum named for the purpose of constructing, reconstructing and repairing the highways therein enumerated, was passed pursuant to the provisions of Section 7419, General Code, which reads:

“When one or more of the principal highways of a county, or part thereof, have been destroyed or damaged by freshet, land-slide, wear of watercourses, or other casualty, or, by reason of the large amount of traffic thereon or from neglect or inattention to the repair thereof, have become unfit for travel or cause difficulty, danger or delay to teams passing thereon, and the commissioners of such county are satisfied that the ordinary levies authorized by • law for such purposes will be inadequate to provide money necessary to repair such damages or to remove obstructions from, or to make the changes or repairs in, such road or roads as are rendered necessary from the causes herein enumerated, they may annually thereafter levy a tax at their June session, not exceeding five mills upon the dollar upon all taxable property of the county, to be expended under their direction or by the employment of labor and the purchase of materials in such manner as may seem to them most advantageous to the interest of the county, for the construction, reconstruction or repair and maintenance of such road or roads or part thereof.”

This statute has been in force many years, and, under authority thereby conferred, taxes have been levied to meet the expense of repairing roads which had become unfit for travel by reason of previous neglect or inattention to repairs thereof, as well as to meet the expense of restoring roads destroyed or damaged by freshet, landslide, wear of watercourses, or other casualty.

The important question presented in this case is not whether a valid levy of taxes has been made for any -of the purposes stated in Section 7419, General Code; but whether, in making that levy, cognizance must be taken of the Smith one per cent, law, being Sections 5649-2 to 5649-5b, General Code, and the levy made subject to the restrictions and within the limitations there prescribed.

The Smith one per cent, law was enacted in response to a popular demand for legislative action fixing a definite restriction and limitation upon the rate of tax levies, for the evident purpose of limiting the expenditure of public funds and bringing about a more just return and valuation of property for the purposes of taxation. It provides in substance that the maximum rate of taxes that may be levied for all purposes, upon the taxable property within a taxing district, shall not in any one year exceed ten mills on each dollar of the tax valuation of the taxable property of such taxing district for that year. The legislature evidently deemed it necessary to relieve from such express limitation any levies which might become imperative by reason of conditions which could not reasonably be foreseen and which could not be met by the ordinary levies; hence the enactment of Section 5649-4, General Code, which is as follows:

“For the emergencies mentioned in sections forty-four hundred and fifty, forty-four hundred and fifty-one, fifty-six hundred and twenty-nine, seventy-four hundred and nineteen and 7630-1 of the General Code, the taxing authorities of any district may levy a tax sufficient to provide therefor irrespective of any of the limitations of this act.”

The primary question presented by the demurrer to the petition is whether the word “emergencies” in this section embraces all the purposes for which taxes may be levied under authority of Section 7419; or, in other words, whether Section 5649-4 must be regarded as a legislative declaration that all levies authorized by Section 7419 are emergency levies. In view of the legislative policy declared by the enactment of the Smith one per cent, law, the manifest purpose of which is to restrict the power of levying taxes and thus limit expenditure by administrative officers, statutes purporting to permit departures from that general policy and authorizing exemption therefrom will be strictly construed, and no tax should be levied in excess of the limitation definitely prescribed unless it is clearly exempted from the provisions of the restrictive statute by the legislature itself. The legislative policy plainly disclosed should not be thwarted by adverse construction of the statute or by judicial amendment of its terms, no matter how laudable the purpose may seem.

The conditions which it is claimed in this case constitute an emergency are that the principal highways enumerated, by reason of a large amount of traffic and by reason of neglect and inattention to the repairs thereof, have become unfit for travel and cause difficulty, danger and delay to teams passing thereon. Do such conditions constitute an emergency ?

The word “emergency” as used in this statute is to be taken in its natural, plain, obvious and ordinary signification. The Century Dictionary defines it as follows:

(1) “A sudden or unexpected happening; an unforeseen occurrence or condition; specifically, a perplexing contingency or complication of circumstances.”
(2) “A sudden or unexpected occasion for action; exigency; pressing necessity.”

. It is difficult to conceive of a road becoming out of repair from any cause other than one of those enumerated in Section 7419, to-wit, freshet, landslide, wear of watercourses, or other casualty, or by reason of the large amount of traffic thereon, neglect or inattention to repair. Roads requiring reconstruction or repair are of two general classes, the first embracing those roads which have been destroyed or damaged by freshet, landslide, wear of watercourses, or other casualty, any one of which conditions comes within the term “emergency” as above defined; the second, those roads which by reason of the large amount of traffic thereon or from neglect or inattention to the repair thereof have become unfit for travel or cause difficulty, danger or delay to teams passing thereon. It seems quite probable that the legislature must have had this classification in mind when in Section 5649-4 it used the term “emergencies.” The condition occasioned in a manner stated in our first classification constitutes an “emergency.” It is the result of a sudden or unexpected happening, an unforeseen occurrence, an extraordinary condition; while a condition arising under our second classification has to do only with injuries resulting naturally and necessarily from the use of the roads, or from mere neglect or inattention of the county commissioners, which could readily have been foreseen and cared for by the usual and ordinary methods. The one condition is extraordinary and unforeseen, the other natural, usual and to be expected. The one class constitutes an emergency, the other certainly does not. The legislature must have recognized this distinction and must have regarded some of the purposes enumerated in Section 7419 as not being emergencies, and for that reason did not exempt the entire section from the limitations of the Smith one per cent, law but did exempt only the “emergencies mentioned” therein. Some such language as “the limitations of this act shall not apply to Sections 4450, 4451, 5629 and 7419,” etc., would undoubtedly have been employed by the legislature had it intended to provide that all levies authorized by those sections should be made irrespective of the limitations of the Smith one per cent. law. Had that been the desire of the legislature it would not have chosen the specific language “emergencies mentioned,” but in , all probability would have used some broader and more comprehensive form of expression, such as above indicated.

If all the conditions enumerated in Section 7419 are to be regarded as emergencies, a board of county commissioners may designedly permit roads to become out of repair, and then treat their own failure, neglect and inattention as constituting an emergency, and thus evade the express limitations of the Smith law. The word “emergencies” thus used would mean a sudden or unexpected happening or unforeseen occurrence or condition and would also mean a condition gradually created, and therefore expected and foreseen by those whose very neglect and inattention had caused it. This absurd conclusion is necessarily reached by the adoption of the theory that all of the purposes mentioned in Section 7419 are emergencies. It has been urged, however, .that the legislature evinced a design to designate as emergency levies all levies made under authority of the sections referred to in Section 5649-4, and that further inquiry into the meaning of the term “emergencies” is thereby precluded. Let us, therefore, examine the other sections enumerated in Section 5649-4.

Section 4450 authorizes municipalities to borrow money and levy a tax to meet the expenses necessary in case of the prevalence of a dangerous communicable disease.

Section 5629 provides for a special levy to meet the expense of rebuilding the county infirmary or children’s home when the same has been destroyed by fire or other casualty.

Section 7630-1, which was enacted in 1913, makes provision for the rebuilding of schoolhouses destroyed or damaged by fire or other casualty.

All will agree that the conditions set forth in these three sections are emergencies. The same cannot be said of Section 4451, General Codé, but it must be conceded that if the term “emergencies” embraces all the conditions and situations set out m Section 7419 it must follow that all the purposes for which taxes are levied under Section 4451 are likewise emergencies and may be made outside of the limitation prescribed. Section 4451 provides as follows:

“When expenses are incurred by the board of health under the provisions of this chapter, upon application and certificate from such board, the council shall pass the necessary appropriation ordinances to pay the expenses so incurred and certified. The council may levy and set apart the necessary sum to pay such expenses and to carry into effect the provisions of this chapter. Such levy shall, however, be subject to the restrictions contained in this title.”

Authority is conferred, by this section to make a levy and set apart a sum necessary to carry into effect the provisions of “this chapter,” and the chapter referred to includes practically all provisions of the statutes relative to health and sanitation. An examination of that chapter discloses that the expenses there authorized to be incurred include such items as regular compensation of appointees of the board of health, and all expenses incident to the ordinary routine work of such board, including registration of births and deaths and many other items of expense which would be incurred in the ordinary administration of the board’s affairs. It necessarily follows that if all purposes for which levies are authorized by Section 4451 are to be regarded as emergencies, then the entire levy of a municipality for the health fund would be exempted from the limitations of the Smith law, which result certainly could not have been intended.

The conclusion is irresistible that, having reference to Section 4451, the legislature must have contemplated that some of the expenses required to be incurred would result from unforeseen and extraordinary conditions, constituting emergencies, while other expenses would be incurred in the usual and ordinary course of administration and could not in any sense be regarded as emergencies.

It follows that Section 5649-4, General Code, cannot be construed as a legislative declaration that all the conditions enumerated in the sections referred to therein are emergencies for which taxes may be levied in excess of the limitation prescribed; that levies made under authority of Section 7419 are exempt therefrom only when required to meet extraordinary conditions resulting from some unexpected or unforeseen occurrence or circumstance, such as the destruction of or damage to a principal highway by freshet, landslide, wear of watercourses or other casualty; and that, on the other hand, neglect or inattention of public officers to repair highways does not constitute an emergency, and a levy of taxes for the purpose of meeting the expense of reconstruction, repair and maintenance of roads which by reason of such neglect and inattention have become gradually worn out and unfit for travel, even though they cause difficulty, danger or delay, is not exempt as an emergency levy.

The levy certified by the county commissioners in the case before us is consequently not a valid levy for emergency purposes, and should not be placed upon the tax list. The demurrer to the petition is sustained.

Demurrer sustained.

Johnson, Wanamaker, Newman and Jones, JJ., concur.

Donahue, J.,

dissenting. Section 7419, General Code, was enacted for the sole purpose of meeting extraordinary conditions. That section authorizes a levy to be made under its provisions only when the ordinary levies authorized by law for road purposes are not adequate to make the necessary repairs.

The word “emergency” naturally and necessarily includes extraordinary situations or conditions that cannot be met and mastered in the ordinary and usual way.

It is the unsafe condition of the principal highways of a county, and not the causes that produced that condition, that presents an emergency to the public authorities whose duty it is to. keep the roads in repair and safe for public travel, yet who cannot do so with the proceeds of the ordinary levy at their disposal.

An emergency, as defined by lexicographers, is not merely a sudden and unexpected happening, an unforeseen occurrence or condition, but includes also ' “a pressing necessity” or “exigency.” “Exigency” is defined as “a case demanding immediate action, supply, or remedy.”

If the fact that one of the principaThighways of a county has become unfit and unsafe for travel does not present a case demanding immediate action or remedy, regardless of how this condition came about, then of course this writ should be refused.

It is conceded that if the dangerous condition of the highway had been caused by a freshet, landslide, the wear of watercourses, or other casualty, then a situation would be presented demanding immediate remedy, for which purpose this extraordinary levy might be made; but it is held that if such dangerous condition of the highway were caused by neglect or inattention no such exigency would be presented, notwithstanding the conditions confronting the board of county commissioners and the traveling public would be exactly the same in the latter as in the former case.

The consequences that must follow such a construction, if relief is not afforded by further legislation, will be intolerable.

Under the provisions of Section 7419, General Code, the board of county commissioners is required to find, first, that a principal highway of the county has become unfit for travel, or will cause difficulty, danger or delay to teams passing thereon, and, second, that the ordinary levies authorized by law will be inadequate to remedy these defects.

The finding of the board of county commissioners on these two important questions, in the absence of fraud, collusion, or abuse of discretion, must be accepted as a final determination of the truth of these facts, not only by the public, but by the courts of this state.

It follows, then, that notwithstanding these findings of facts by the board of county commissioners, that under the construction given this statute by the majority of this court there is no possible way open to the board of county commissioners to remedy the dangerous and defective condition of the highway. The public must continue to travel it at the risk of injury to person and property, and rely upon recovering from the county damages for any such injury; or the highway must be abandoned forever.

It would seem unnecessary to say that this was not the intention or the purpose of the general assembly of Ohio when it passed the legislation providing for road repairs.

In the construction of a statute, consideration should be given to all other legislation upon the same subject-matter, and if possible the whole should be harmoniously construed, so as to provide a practical working plan for the accomplishment of the purposes intended.

The commissioners of a county are required to keep its principal highways in repair, free from nuisance, and safe for public travel. It is further provided by statute, Section 2408, General Code, that the board of county commissioners shall be liable^ in its official capacity, for damages for its failure to do this.

It would hardly seem possible that the legislative department of our government intended to require the commissioners of a county to keep the public highways in a safe condition for public travel, provide that the county should be liable in damages for failure to do so, and then withhold from the board of county commissioners the means of performing the duties imposed upon it. Such a penny-wise-pound-foolish policy would not only shortly bankrupt a county treasury, but would endanger lives and impose the hardship of primitive road conditions upon the people of our state.

It has been suggested that if a levy were permitted under this statute, when by reason of neglect or inattention to repairs a highway had become in such a dangerous and unfit condition for travel that the ordinary levies authorized by law for the purpose would be inadequate for such repair, county commissioners would designedly permit roads to become out of repair and then treat their own failure, neglect and inattention as constituting an emergency.

This might be a good argument to the lawmaking power of the state, but it is no argument to a court in the construction of this statute. Whether wisely or unwisely, the legislature has committed to the board of county commissioners authority to determine the facts prerequisite to the validity of this extraordinary levy.

The Smith one per cent, law was enacted in response to a popular demand for economy in the administration of public affairs, but a careful scrutiny of this law discloses that it was aimed at extravagance in the current ordinary expenses of administration, and wisely exempted from its provisions not only past indebtedness but also such extraordinary expenses as could not in the very nature of things be anticipated and included within a just limitation.

The general assembly of Ohio in enacting this law recognized that the very life of the law depended upon exempting from its operation not only the inherited burdens of past extravagance but also extraordinary and unforeseen expenses, the amount of which could not be estimated in advance. Every time the proceeds of a levy for current expenses, made under the limitations of this law, is burdened with extraordinary and unusual expenses, the enemies of the law are furnished with an additional argument for its repeal.

The original Smith one per cent, law, construed in accordance with the evident intent of the general assembly responsible for its passage, was safe from assault, for it furnished a sufficient income to meet all reasonable current demands and effected a salutary economy in reference thereto.

A subsequent legislature, however, amended the law, by bringing within its limitations all past indebtedness. The result has been that in many taxing districts of the state the amount that the original Smith one per cent, law permitted to be levied for current expenses has been practically exhausted in the payment of prior indebtedness, leaving present administrations without funds to meet the necessary and ordinary expenses of government. Add to this the further burdens of extraordinary expenses that never were intended to come within the limitations of this law, and the existence of this measure, the most salutary ever enacted to restrain official extravagance and protect the public from exorbitant tax levies, is still further imperiled.

Aside from these considerations, it is evident that Section 5649-4, General Code, recognized and declared that the purpose named in Section 7419, General Code, for which an extraordinary tax might be levied, is an emergency within the contemplation of that provision of the statute exempting this levy from the limitations imposed by it.

The weakness of the argument in support of a separation of this statute (Section 7419) with reference to causes instead of the condition to be remedied, is sought to be strengthened by the claim that the levies authorized by the other sections referred to in Section 5649-4, General Code, may' be divided with reference to the purposes for which such levies are authorized.

While in no wise important to the disposition of this case, it is by no means certain that any of the other sections named in Section 5649-4 should be given a different construction. It is conceded that the conditions named in Sections 4450, 5629, and 7630-1, General Code, are emergencies. This leaves but two other sections, the one under consideration and Section 4451.

While the language used in Section 4451, General Code, would seem to bring within its terms all expenses that might be incurred by the board of health under the provisions “of this chapter,” yet other sections of the same chapter show conclusively that this sectipn can not be so construed; otherwise the further legislation in the same chapter, authorizing the issue of bonds and the levy of a tax to meet the same, and for a “sanitary fund,” in addition to all other levies authorized by law, would be meaningless.

Section 4451 also authorizes a levy “to carry into effect the provisions of this chapter.” This adds nothing to the earlier provision of this section that “when expenses are incurred by the board of health under the provisions of this chapter,” etc., but merely restates the same provision in different language.

If it were conceded, however, that Section 4451, General Code, as it now reads, authorizes a levy for all the expenses incurred under the provisions of this chapter, it by no means follows that the purposes for which these expenses are incurred are not emergencies within the meaning of Section 5649-4, General Code.

The board of health of a municipality is not a mere local agency for local purposes, but on the contrary is a part of a system for the administration of the police power of the state for the conservation of the lives and health of its citizens. If a municipality fails or refuses to establish a board' of health or appoint a health officer, the state board of health may appoint a health officer for the municipality and fix his salary and term of office, and his salary as fixed by the state board of health, and all necessary expenses incurred by him in the performance of his duties, shall be paid by and be a valid claim against such municipality, regardless of its other needs.

Section 4451, General Code, authorizes but a single levy for expenses incurred by the board of health under the provisions of that chapter, part of which are admittedly emergencies. The council in making this levy is not required to make separate levies for separate purposes, or to specify how much is levied for one purpose or how much for another. The levy is but one item and for but a single purpose. If, then, Section 5649-4 is to be construed as exempting only a part of that levy from the limitation of the Smith one per cent, law, how is that part to be ascertained? Evidently not from the levy itself, for, as construed by a majority of this court, that is a levy for all the expenses incurred by the board of health under the provisions of that chapter. The general assembly when it passed the Smith one per cent, law rtiust have considered as emergencies the purposes for which the entire levy is authorized, otherwise it would have provided for a separation of the levy into different levies for different purposes, so that the character of each could be easily determined. As it now stands, either all of this levy must come within the exemption provided in Section 5649-4, General Code, or none of it.

Regardless, however, of whether the levy authorized by Section 4451, General Code, may be separated with reference to the purposes for which the levy is made, that cannot affect the construction of Section 7419, General Code, for in the last analysis that section authorizes a levy for but one purpose, and that purpose is the immediate remedy of a defective and dangerous condition of a principal highway of the county, when the ordinary levies for road repairs are not adequate for such purpose. It is a condition, not the cause, that demands immediate remedy.

For these reasons I am unable to concur in the judgment entered by a majority of this court in this case.  