
    The State, ex rel. The City of Dayton, v. Patterson, Prosecuting Attorney, et al.
    
      Budget commissioners — Adjustment of taxes and reduction of bxidgeis — Mandamus does not tie — To control discretion or correct error of judgment, when.
    
    Under the provisions of Section 5649-3a, General Code, the budget commissioners, in the adjustment of the various amounts of taxes to be raised in a taxing district and in reducing the estimates contained in the budgets, are called upon to exercise their official judgment and discretion. In the absence of fraud, bad faith or abuse of discretion it is not within the power of the court to interfere, and an action in mandamus will not lie to control such discretion or correct an error of judgment.
    (No. 15014
    Decided October 29, 1915.)
    In Mandamus.
    This is a proceeding in mandamus, originating in this court, brought by the city of Dayton against the budget commissioners of Montgomery county. The cause was submitted to the court upon a demurrer to the petition, upon the grounds that there was a defect of parties defendant and that the petition did not state facts sufficient to constitute a cause of action.
    On or before the first Monday in June, 1915, the relator, the city of Dayton, submitted to the county auditor of Montgomery county its annual budget, setting forth in itemized form an estimate stating the amount of money needed by it for its wants for the year 1916, in which it appeared that the sum of $969,222.08 was required for operating expenses and for interest and sinking fund for indebtedness incurred subsequently to June 2, 1911, without a vote of the people. The amount of taxable property in the city of Dayton at the time of filing the petition here had not been determined, but it was estimated to be $169,920,000, and the calculations of the budget commissioners hereinafter referred to were based upon that amount.
    The board of education of the city school district of the city of Dayton likewise filed its annual budget as required by law, in which it appeared that it would need for the like purposes for the year 1916 the sum of $676,300. It appears that the city school district extends beyond the corporate limits of the city of Dayton, that the value of the taxable property outside of the city taxable in said school district is estimated at $2,235,650 and that the amount of such budget to be raised by a tax levied on property within the city was $667,615.63.
    The county commissioners of Montgomery county likewise filed the annual budget of the county, in which it appeared that the requirements of the county for the year 1916 for the like purposes would be $676,286. The value of the taxable property in said county outside the limits of the city is estimated at $60,940,000, and the amount of such budget to be raised by a tax levied on the property within the city was $481,383.
    These budgets were laid before the budget commissioners, and upon examination it was found by them that the total amount of taxes to be raised in said city of Dayton, as shown by said budgets and by the estimate prepared by the auditor of the amount of money to be raised for state purpose's— there being no levy for township purposes — excepting provision for interest and sinking fund on bonds issued prior to June 2, 1911, and flood emergency bonds, and bonds authorized by vote of the people, was $444,510 in excess of the amount which could be raised by a levy of ten mills on each dollar of the tax valuation of the taxable property in said city. Said totals, on the estimate of $169,920,000 tax valuation, would require a levy in mills per dollar of valuation as •follows: For school purposes, 3.929 mills: for county purposes, 2.833 mills; for Dayton corporation purposes, 5.704 mills; for state purposes, .15 mill; total, 12.616 mills.
    It is alleged in the petition that it thereupon became, the duty of the budget commissioners to adjust the various amounts to be raised by taxation in said city so that the total amount thereof should not exceed the sum authorized to be levied therein, and to reduce the estimates contained in any or all such budgets by such amount or amounts as would bring the total for the city school district, county of Montgomery and the city of Dayton within the limits provided by law. It is alleged that in the discharge of such duty the budget commissioners should reduce the amount to be raised by taxation by the city of Dayton, the county of Montgomery and the board of education ratably in proportion to the needs of said several taxing-authorities and with regard to their respective powers in the levying of taxes. It is alleged that by such method of reduction the amount to be levied by the city of Dayton for. its operating expenses and interest and sinking fund on bonds issued after June 2, 1911, would be $765,659, and levies in the city of Dayton for like purposes of the county and the board of education should be likewise reduced, whereby the tax levy for all property in said city, reduced to terms of mills on the dollar would be: For city purposes, 4.506 mills; for county purposes, 2.239 mills; for school purposes, 3.105 mills; for state purposes, .15 mill; total, 10 mills.
    It is further alleged that the budget commissioners, in disregard of the duty imposed by law thus to reduce the several estimates, have refused so to do, but have presumed to exercise a discretion in adjusting the amounts of said several budgets in such manner as to allow the board of education the entire amount set forth in its budget and to deduct from the amount of the county budget the sum of $122,900, of which $90,-567 was deducted from that portion of said budget which would be raised by levy upon property in said city, and from the budget of the city of Dayton the sum of $353,943, whereby the total levies for said purposes on all propery in said city, reduced to terms of mills on the dollar, will be: For city purposes, 3.621 mills; for county purposes, 2.300 mills; for school purposes, 3.929 mills; for state purposes, .15 mill; total, 10 mills.
    There is a further allegation in the petition that if the pretended action of the budget commissioners is allowed to stand, the amount of taxes collected and turned over to the relator for the purposes for which the same were levied will be vastly short of its proper proportion of the aggregate taxes authorized to be levied in said city and vastly short of the necessities of said city, for which it has no adequate remedy in the usual course of law'.
    The prayer of the petition is that an alternative writ of mandamus issue to the defendants commanding them, on or before a day to be fixed by the court, to adjust the amounts to be raised by taxation upon property in the city of Dayton in proportion to the needs of the said city of Dayton, the county of Montgomery and the city school district of the city of Dayton, and with regard to their respective powers in the levying of taxes, so that the tax levy upon all property in said city for all purposes, excepting the interest and sinking fund on bonds issued after June 2, 1911, and flood emergency bonds, reduced to terms of mills on the dollar, will be, for city purposes, 4.506 mills; for county purposes, 2.239 mills; for school purposes, 3.105 mills; for state purposes, .15 mill; total, 10 mills; or show cause, if any they have, why a peremptory writ of mandamus should not issue commanding such reduction.
    
      Mr. W. S. McConnaughey, city attorney; Mr. John C. Shea and Mr. Jay Leach, for relator.
    
      Mr. Robert C. Patterson, prosecuting attorney, and Mr. Roy G. Fitzgerald, for respondents.
   Newman, J.

The budget commissioners of Montgomery county, upon an examination of the budgets submitted by the city of Dayton, the board of education of the city school district of Dayton and the county commissioners of Montgomery county, and the estimates prepared by the auditor of the amount to be raised for state purposes, found that the total amount of taxes sought to be raised in the city of Dayton exceeded the amount authorized by law. To raise the amount of money needed for the wants of - the city of Dayton, for corporation purposes, as shown by its budget, based on the estimated value of the taxable property of that city, would require a levy of 5.704 mills. To raise the amount required for school purposes, as shown by the budget of the board of education, would require a levy of 3.929 mills, and to raise the amount required for county purposes, as shown by the budget of the county commissioners, would require a levy of 2.833 mills. These, together with the levy for state purposes — .15 mill — would require a total levy for these several purposes of 12.616 mills. To bring the total levy within the ten-mill limitation provided for in Section 5649-2, General Code, the budget commissioners reduced the levy for corporation purposes to 3.621 mills and for county purposes to 2.3 mills, leaving the levy for school purposes undisturbed, as well as that for state purposes, the commissioners having no authority to reduce, increase or in any manner change the sum or sums levied by law for state purposes. The State, ex rel. Donahey, Auditor of State, v. Edmondson, County Auditor, et al., 89 Ohio St., 93.

It is alleged in the petition that the budget commissioners, in disregard of the duty imposed by law, presumed to exercise a discretion in adjusting the amounts of the several budgets. There is no allegation that there was an abuse of discretion. It is the contention of counsel for relator that when it becomes necessary for the budget commissioners to make reductions of the estimates in the ■budgets, filed by the different authorities within the taxing district, to bring the total within the ten-mill limitation, the reduction should be made in proportion to the various estimates, so that the resultant shortage, inconvenience and deprivation will be distributed ratably, rather than imposed altogether upon one of the instruments of local government cooperating within their several spheres in the community. They are asking the court to require the budget commissioners to proceed along these lines in the matter of the adjustment of the amounts to be raised by taxation, and in their brief they suggest other plans or methods which may be adopted in the event the plan first suggested does not meet the approval of the court. Counsel deny that the budget commissioners have the right to exercise any discretion in the adjustment of these various amounts to be raised so that the total amount shall not exceed in any taxing’ district the sum authorized to be levied therein.

Under the provisions of Section 5649-3a, General Code, the city of Dayton, through its council, the board of education of the city school district and the county commissioners were required to submit, on or before the first day of June, 1915, to the county auditor, their annual budgets, setting forth in itemized form an estimate stating the amount of money needed for their wants for the year 1916. This statute recites at length the numerous matters and things required to be specifically set forth in the budgets, including “such other facts and information as the tax commission of Ohio or the budget commissioners may require.” It is to be presumed in the instant case that the officers and boards submitting these budgets complied with the law. These budgets, under the requirements of Section 5649-3c, General Code, are laid before the budget commissioners by the auditor with “such other information” as they may request.

It is further provided in Section 5649~3c:

“The budget commissioners shall examine such budgets and estimates prepared by the county auditor, and ascertain the total amount proposed to be raised in each taxing district' for state, county, township, citjq village, school district, or other taxing district purposes. If the budget commissioners find that the total amount of taxes to be raised therein does not exceed the amount authorized to be raised in any township, city, village, school district, or other taxing district in the county, the fact shall be certified to the county auditor. If such total is found to exceed such authorized amount in any township, city, village, school district, or other taxing district in the county, the budget commissioners shall adjust the various amounts to be raised so that the total amount thereof shall not exceed in an}^ taxing district the sum authorized to be levied therein. In making such adjustment the budget commissioners may revise and change the annual estimates contained in such budgets, and may reduce any or all the items in any such budget, but shall not increase the total of any such budget, or any item therein. The budget commissioners shall reduce the estimates contained in any or all such budgets by such amount or amounts as will bring the total for each township, city, village, school district, or other taxing district, within the limits provided by law.

“When the budget commissioners have completed their work they shall certify their action to the county auditor, who shall ascertain the rate of taxes necessary to be levied upon the taxable property therein of such county, and of each township, city, village, school district, or other taxing district, returned on the grand duplicate, and place it on the tax list of the county.”

It is the positive duty of the budget commissioners, in adjusting the various amounts to be raised, to see that the total amount shall not exceed in any taxing district the sum authorized to be levied therein, to-wit, ten mills on each dollar of the tax valuation of the taxable property therein. In the discharge of this duty they are to reduce the estimates contained in any or all budgets by such amount or amounts as will bring the total of the taxing district within the limits provided by law. It is to be observed that they are authorized to “revise and change the annual estimates contained in such budgets.” They “may reduce any or all the items in any such budget.” According to the contention of counsel for relator they must reduce the estimates contained in all the budgets. We do not think the statute will bear that interpretation. By its plain provisions the budget commissioners are called upon to use their official judgment and discretion in the adjustment of the various amounts, and in the reduction which they make. In the absence of fraud, bad faith or an abuse of discretion, their action as certified to the county auditor cannot be interfered with. It is said that in the case of State, ex rel., v Sanzenbacher, Auditor, 84 Ohio St., 506, this court has indicated that in making a reduction the budget commissioners should have due regard to the proportions of the total amount that each taxing board or taxing officer is authorized to levy. Can it be said that in the present case such regard was not had? The aggregate of all taxes that may be levied for corporation purposes under Section 5649-3a, General Code, is 5 mills; for school purposes the same. When the adjustment and reduction were made in the present case the levy for corporation purposes was 3.621 mills; for school purposes 3.929 mills. As we have seen, the budget commissioners, when they examine the budgets, have before them a full and detailed statement of the financial condition of each taxing authority in the taxing district and the data upon which the needs and requirements of the taxing officers and boards are based. In the case at bar they deemed it advisable from the information at hand to reduce the estimate of the city of Dajdon for corporation purposes and to leave undisturbed the estimate of the board of education. They had authority to do this. One of the purposes in having the estimates of the amount of money needed submitted in itemized form and in requiring a submission of the facts and information provided for in Section 5649-3a, is to provide a basis of calculation in the event it becomes necessary to adjust and reduce the amounts. If the contention of counsel for the relator is correct these detailed statements would serve no purpose. An estimate not itemized would answer the purpose. It would be necessary only to have the totals of the different estimates, and-the reduction could then be made ratably and in proportion to these different totals.

This is a proceeding in mandamus. Before the writ will issue it must appear that the duty of reducing the various estimates proportionately, or according to any of the plans or methods suggested by counsel in their brief, is a duty specially enjoined by law upon the budget commissioners. Section 12285, General Code, provides that a writ in mandamus may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, but- it cannot control judicial discretion. The budget commissioners have exercised their judgment in this matter and discharged the function of reducing the various amounts to be raised by taxation to within the limits provided by law. It is not within the power of the court to interfere with a lawful discretion. The law announced in State, ex rel., v. Crites, 48 Ohio St., 460, is in point: “The remedy by mandamus, while appropriate to compel an officer to proceed in a judicial or quasi judicial matter confided by law to his jurisdiction, cannot be invoked to correct his errors, or control his discretion.” For the reasons we have given we conclude that the facts set out in the petition are insufficient to constitute a cause of action.

It is suggested by counsel for the defendants that in this matter the rights of the board of education had become fixed and that it was a necessary party to this proceeding. The only authority cited in support of this contention is State v. Pilsbury, 31 La. An., 1. In that case it was held that any third person having an interest in the success of the relator or respondent in a mandamus suit, or an interest opposed to both, may intervene in the suit. There was no holding in that case, as-we understand it, that such person was a necessary party. A proceeding in mandamus is statutory and the only order that can be made is against the defendant, commanding the performance of an act which the law enjoins as a duty resulting from the office, trust or station. Such an order, in many cases, may affect many persons. But it is certainly unnecessary to make such persons parties to the proceeding.

Demurrer sustained and petition dismissed.

Nichols, C. J., Johnson, Donahue, Wanaaiaker, Jones and Matthias, JJ., concur.  