
    City of Barberton, ex rel. Platt, v. Dutt, Auditor et al.
    
      Taxation — Election on bond issues — Notice to contain estimated average additional rate outside limitations — Section 5649-9b, General Codé — Statutory provisions mandatory.
    
    The requirement of Section 5649-96, General Code (111 Ohio Laws, 335), that the notice of an election to authorize the issuance and sale of bonds shall contain the estimate of the average additional rate of tax, outside the limitations, which will be made necessary by the proposed bond issue, is mandatory, and a failure to comply with that requirement of the section invalidates the election.
    (Decided June 10, 1926.)
    Appeal: Court of Appeals for Summit county.
    
      Mr. G. R. Platt, city solicitor, for plaintiff.
    
      Mr. Ray E. Morton, and Mr. G. W. Booth, prosecuting attorney, for defendants.
   Washburn, J.

This is an appeal case, in which the plaintiff seeks to enjoin the authorities of the city of Barberton from issuing and selling certain bonds of that city, and also to enjoin other public officials from levying and collecting a tax to retire such bonds.

It is conceded that if the procedure provided by law. had been followed by the public authorities, the proposed issue of bonds would be legal, and the only claimed defect in such proceedings is in the published notice given of the election held to authorize the issuance and sale of the bonds.

The law (Section 5649-96, General Code [111 Ohio Laws, 335]) requires the county auditor to estimate and formally certify the rate of tax above the limitation which will be made necessary by a proposed bond issue, and also provides that the notice of election shall state:

“The amount of the proposed bond issue, the purpose for which it is to be issued, and the maximum number of years during which such bonds shall run, and the estimated average additional rate outside of the limitations.”

These facts are also required to be shown on the ballots. They were shown on the ballots, but not in the notice of election, and this defect, it is claimed, renders the election illegal.

While the holding of the election determined whether the electors favored the making of the improvement, the principal object of the election was to determine whether, in order to pay for same, the electors would authorize the levy of a tax which would exceed the tax limitations provided by law.

If the improvement could be made without exceeding the tax limitations, it is apparent that it might meet with the favor of many who would not favor it if by doing so the tax rate limitations would be exceeded, and therefore, as has been said, the important purpose of the election was to determine whether the electors would vote upon themselves a tax over and above the tax limit fixed by law.

This being so, it was of prime importance to know the real object and purpose of the election— if not by the required notice, at least from other sources, such as newspaper articles, or advertising, or discussions and comments.

We are of the opinion that the law requiring the notice of election to contain the information that it is proposed to levy a tax over and above the limitation provided by law was passed for the protection of the taxpayer, and that it was intended that such important fact should be made known at an early stage of the proceedings, so the taxpayers might consider it and have an opportunity to discuss it if they cared to do so. Such information, if obtained when the ballot was handed to the elector, would afford such elector a very short time in which to consider the matter, but he would be given an opportunity to vote against the proposition if he so desired. Such belated information, however, would be of no avail whatever to electors who did not go to the polls, and who, had they known that it was proposed to vote a bond issue which would necessitate the levying of a tax beyond the limitations, would have opposed such bond issue. But the fact that the Legislature required such information to be placed upon the ballot, and also required that the resolution initiating the proceedings should contain such information, indicates an intention on the part of the Legislature to protect the citizens from taxation beyond the- limitations unless a specified percentage of them consent thereto.

When we consider the whole act (111 Ohio Laws, 335) of which Section 5649-9b is a part, the imperative form of its provisions, the then existing conditions as to taxation, and the relief sought to be afforded, it seems apparent that information as to exceeding the tax limitations was considered as being an important element affecting the merits of the election, in fact, the most important element, and that the positive requirements of the statute in reference thereto, including that as to the notice of election, are mandatory, — purposely made so for the protection of the taxpayer.

But, if the requirement as to notice is directory merely, the election cannot be sustained unless the information in reference to exceeding the limitation as to rate of tax was made known by other means to the electors generally — brought home to the great body of the electors through means other than the notice which the law prescribed.

In this case we do not find that such information was brought home to the great body of the electors, and in that respect this case differs very materially from the cases cited and relied on by defendant.

We recognize the general rule to be that “election laws are liberally construed when necessary to reach a substantially correct result, and to that end their provisions will, to every reasonable extent, be treated as directory rather than mandatory,” but in this case the election was not just an ordinary election — not one the object of which was simply to authorize the issuance of bonds. 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. Not only those who went to the polls, but all who had a right to go to the polls, were entitled to timely notice that it was proposed to lower such barrier.

The failure to comply with the law as to notice rendered the election invalid, and the prayer of the petition is granted.

Injunction allowed.

Pardee, P. J., and Funk, J., concur.  