
    The State, ex rel. The City of Cleveland, by etc., v. Zangerle, County Auditor.
    
      Taxation — Interest and sinking fund levies — Section n, Article XII, Constitution, 1912 — Bonds authorized but not issued — Rate to be placed on tax list, when — Bonds authorized to comply with orders of state board of health — Section 1359-1, General Code (106 O. L„ 461).
    
    (No. 15416
    Decided October 13, 1916.)
    In Mandamus.
    This is a proceeding in mandamus which seeks by peremptory writ to direct the auditor of Cuyahoga county to place upon the tax list of Cuyahoga county a certain amount to be raised by taxation for the purposes stated in the petition.
    The petition alleges that the city of Cleveland is under orders of the state board of health to build works for the disposal of its sewage and to prevent the pollution of. Cuyahoga river and Lake Erie; that the orders were issued July 22, 1912, and by an amendment thereof the city must .comply before July 1, 1917; that on August 30, 1915, the council of the city duly adopted a resolution declaring the necessity of the levy of an additional tax of one-quarter of one mill in excess of the levies authorized by Sections 5649-2, 5649-3a, and 5649-5&, General Code, for the purpose of paying interest upon and providing a sinking fund for the redemption of bonds in the sum of $2,000,000, to be issued for the .purpose of installing the works to prevent the pollution of Cuyahoga river and Lake Erie, thus complying with the order of the state board of health; that the resolution also provided that the question of levying said additional tax should be submitted to the voters of the city of Cleveland at the election to be held November 2, 1915; that due notice of the election was given and that the question was duly presented to the voters and carried by the necessary majority .; and that on or about May 29, 1916, the council by ordinance authorized $2,000,000 of bonds for the purposes stated, $1,200,000 of which were to be for the construction of sewage disposal plants and sewers leading thereto, to prevent the pollution of Cuyahoga river, and $800,000 for Lake Erie purification bonds. Of the former class $60,000 were directed to be issued to mature October 1, 1917, and of the latter class $40,000 were to mature October 1, 1917. Both issues were to carry four and one-half per cent, interest, running from October 1, 1916, and payable semiannually.
    The petition also alleges that the ordinances provided in terms that there should be and was thereby levied on all the taxable property of the city of Cleveland, in addition to all other taxes, for each of the years from 1916 to 1927, both inclusive, a tax sufficient to pay accruing interest on the bonds and to create a proper sinking fund to retire them at their maturity; that the city of Cleveland on the first Monday of June, 1916, caused to be submitted to the defendant, as county auditor, its annual budget, in which was included the amount of such additional taxes as were authorized by the vote of the electors, as heretofore stated, which were set out in detail as provided by law; that the budget commissioners certified the amount of taxes necessary to be levied upon the taxable property of the city of Cleveland to the defendant auditor, including the amount of the bonds so certified in the budget of the city of Cleveland by the city council; and that the auditor refused to place the same upon the duplicate and based his refusal on the ground that the bonds provided for in said ordinances, hereinbefore described, had not been issued. The relator alleges that said ordinances were duly passed by the city council of the city of Cleveland, and that said bonds had been duly and properly prepared as authorized, but had not been sold, and could not be sold, because of. the refusal of the defendant herein to include upon the duplicate of Cuyahoga county for the incoming year the amount necessary to pay the bonds maturing October 1, 1917, and the interest on all of the bonds accruing on said date; and that the compliance by the city with the order of the state board of health is thus being prevented by inability to raise the funds required to complete the work necessary to comply with the order. Relator therefore prays as first above stated.
    Defendant filed a demurrer to the petition and the cause is presented to this court on the demurrer.
    
      Mr. W. S. FitzGerald, director of law, and Mr. Ben B. Wickham, for the relator.
    
      Mr. Cyrus Locher, prosecuting attorney, and Mr. Frederick W. Green, assistant prosecuting attorney, for the defendant.
   By the Court.

It appears from the petition that the state board of health, under the authority conferred upon it by law, duly issued orders to the city of Cleveland to build works for the disposal of its sewage and to prevent the pollution of Cuyahoga river and Lake Erie; that in attempting to carry out these orders the city was confronted with the fact that its indebtedness was such that the levy for the purpose of providing interest and sinking funds on the bonds to be issued to meet the expense of this improvement would exceed the maximum limitations imposed by law without a vote of the people thereon, and thereupon the council, acting under authority conferred by Section 1259-1, General Code (106 O. L., 461), adopted its resolution to the effect that the question of an additional levy of one-fourth of a mill for this purpose should be submitted to the voters at the ensuing election. Notice of the election was given according to law, in which the electors were informed that the additional tax was to be levied during the years 1916 to 1927, both inclusive. The election was duly held and the proposition submitted was carried by the necessary majority.

It will be noted that the question submitted to the electors was the levying of “ah additional tax of one-fourth of one mill * * * during the years 1916 to 1927, both inclusive, for the purpose of paying the interest upon and of providing a sinking fund for the redemption of bonds in the sum of $2,000,000.00,” etc.

In support of the demurrer it is urged that in so far as this levy is predicated upon the provisions of Section 1259-1 it is not subject to control or adjustment by the budget commission; that the proceedings in the matter of the submission of the levy to a vote of the people do not conform to the requirements of that section, and that levies for sinking fund purposes can be predicated only upon bonds actually outstanding.

We think that the allegations of the petition with reference to the budget commission are immaterial. The legislative power is vested in the council, and when it has properly proceeded in accordance with the provisions of the statute, and within the limits prescribed in the statute, and the electors of a municipality have given the required consent in accordance with the statute, the ministerial officers carry out the will of the legislative body and of the people.

Section 11 of Article XII of the Constitution provides that no bonded indebtedness of the state, or any political subdivisions thereof, shall be incurred or renewed, unless, in the legislation under which such indebtedness is incurred or renewed, provision is made for levying and collecting annually by taxation an amount sufficient to pay the interest on said bonds, and to provide a sinking fund for their final redemption at maturity.

There is in this provision of the constitution no requirement that the bonds shall have been first issued before the legislation providing for the levy of taxes for the purposes stated shall be passed. That is a matter that is left to the wisdom and discretion of the legislative body having authority to act for the municipality. That the bonds had not actually been issued is no reason why legislation to provide money to meet them when issued and matured could not be adopted. It is the duty of the council to safeguard the interest of the municipality, and in doing so to strictly conform to the constitutional and legislative requirements under which the council acts. This power and this duty of council continue throughout. If from change in the public undertaking, or in the plans or arrangement, the bonds should not be issued; or if it should develop that a less amount was needed, or that there was no necessity for a levy, it would be the duty of the city authorities to reduce or omit entirely the levy in accordance with the circumstances.

Demurrer overruled, and, defendant not desiring to plead further, it is ordered that a peremptory writ issue.

Writ to issue.

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