
    The State, ex rel. Donahey, Auditor of State, v. Roose, Auditor.
    
      Constitutional law—Referendum—Act for state highway levy (103 O. L., 863)—Sections ic and id, Article II, Constitution—County auditor—State taxes—Sections 5626 and 6859-1, General Code— Mandamus.
    
    1, Section 1 of the act of April 8, 1913, as amended April 16, 1913. (103 O. L., 863), is a law providing for a tax levy, and, by thé provisions of Section Id of Article II of the Constitution,- is expressly exempted from the referendum provisions of Section lc of Article II of the Constitution of Ohio.
    
      2'. Section lc of Article II of the Constitution of Ohio expressly provides for a referendum not only upon any law but any see--tion of a law. All sections of a law not subject to the referendum provisions of this section of the constitution go into immediate effect when approved and signed by the governor.
    3. The duty of a county auditor to place on the tax lists of the county the rate required by law for state purposes, as certified to him by the auditor of state, and to enter the same in one column denominated “state taxes,” as provided by Section 5626, General Code, is a ministerial duty specifically enjoined by law, the performance of which may be required by mandamus.
    (No. 14580
    Decided April 30, 1914.)
    In Mandamus.
    This action was brought in this court on behalf of the state of Ohio on the relation of the auditor of state against the defendant, John E. Roose, auditor of Putnam county, Ohio, praying for a peremptory writ of mandamus to compel the defendant auditor of Putnam county to place on the tax lists and duplicate of Putnam county the tax levied for state purposes by section 1 of the act of April 8, 1913, as amended April 16, 1913 (103 Ohio Laws, 863). The respondent answered, admitting that on the 28th day of May relator certified this tax to him as county auditor of Putnam county; that he failed, refused and still refuses to place this levy of one-half of one mill upon the duplicate of all taxable property of that county, and that he did not notify the relator of his refusal so to do, but did notify other officials of the state of Ohio of his intentions in that behalf, and denied each and every other allegation in the petition. He further avers that the relator is a ministerial officer of the state, that his act of certifying this levy was a ministerial act and that the same was without attthority of law. ITe further avers that the law levying the tax .did not go into effect until ninety days after it was filed in the office of the secretary of state, that the ninety days did not expire until-the 13th day of August, 1913, and that, therefore, this levy did not attach as a lien upon the real and personal property of the state of Ohio for the year 1913. He further avers that, at the time of the commencement of this action, it was impossible for respondent to place this levy upon the tax duplicate of Putnam county and legally impossible to collect the same. A reply was filed, denying every averment of the answer which did not constitute an admission of the allegations of the petition. The issue so joined was heard upon the pleading and the first and second agreed statement of facts. The agreed statements of facts are as follows:
    “First Agreed Statement of Facts.
    “The relator, and the defendant, by their respective counsel, agree that, subject to the right of either party to object to the competency of any part thereof as evidence in the above-entitled action, the following facts may be taken and accepted as true:
    “First. All the allegations of the petition admitted to be true by the answer.
    “Second. Neither the relator nor any other officer of the state knew that the defendant had not placed the levy of one-half of one mill to which the pleadings refer on the tax duplicate of Putnam county until the relator received the certificate and abstract of the semi-annual settlement between the defendant and the treasurer of Putnam county, to-wit, on or about the fourth day of March, 19145’
    “Second Agreed Statement of Facts.
    “The relator, and the defendant, by their respective counsel, agree that, subject to the right of either party to object to the competency of any part thereof as evidence in the above-entitled action, the following facts may be taken and accepted as true:
    “First. That a sum equal to seventeen per cent, of the'total taxes to be collected on all the taxable property for all purposes upon the duplicate of Put4 nam county, Ohio, for the year 1913, was paid' at the December payment, 1913, and prior to the commencement of this action. ■ •
    “Second. That a sum' equal to ninety-five percent. of the first half of the 1913 taxes to be collected on all the -taxable property for all purposes upon the duplicate of- Putnam county, Ohio, for the year 1913, was paid-at the December payment, 19.13, and prior to the commencement of this action.
    
      Mr. Timothy S. Hogan, attorney general; Mr. Charles Follett and Mr. Clarence D. Laylin, for relator.
    
      Mr. A. A. Slaybaughj prosecuting attorney, for respondent.
   Donai-iue, J.

The principal questions presented by the pleadings and the agreed statement of facts in this action have been fully; considered and discussed.in the case of The State, ex rel., v. Edmondson, 89 Ohio St., 93, in which; case it was held that the act of April 8, 1913 (103 O. L., 155-158), providing for a levy and to create a fund for the purposes provided in the act passed May 31, 1911 (102 O. L., 333-349), is a valid and constitutional exercise of the authority of the general assembly of this state to levy taxes for state purposes, and that it is not within the power of the budget commissioners of the county to increase, diminish or in any manner change the sum or sums levied by law for such purposes, and, therefore, further discussion of these questions is unnecessary.

While perhaps some of the sections of this act ttiay have been subject to the referendum provisions of'Section lc of Article II of the Constitution, yet- Section Id of Article II expressly exempts laws providing for tax levies from the operation of the preceding provision of the Constitution. There-fore section 1 of this act, providing for a tax levy of one-half of one mill on all taxable property . within the state, went into immediate operation when approved and signed by the governor, , : >,

The contention of counsel that an act containing some sections subject to the referendum will take .effect only as a whole after the expiration of ninety days from the date it is filed in the office'of the secrer tary of state, is not sustained by the provisions of Section lc of'Article II of the Constitution. .That section of the constitution expressly authorizes a referendum upon any section of a law or any 'item of a-'law appropriating money. It follows,, that, such'sections of a law as are not subject to the referendum will go into immediate effect notwithstanding other sections or other items may be sub*ject td the delay incident to a referendum or the right1,to petition therefor. However that may be, the question is no longer of any importance.in this cáse, for no referendum was in fact had upon any section of the law. The law in its entirety was in full force and effect before the auditor had placed the tax levy for state or local purposes upon the tax -lists of the county. It is, therefore, of no importánce whether or not the certificate of this tax was prematurely issued by the auditor of state to the various county aúditors. The fact remains that it was in the possession of the county auditor before that official had in fact completed his tax lists, and before the law required him to complete the same, for it is impossible for the county auditor to make or complete his tax lists before the report of the budget commissioners is filed in his office.

■ The placing of this levy on the tax duplicate is a mere ministerial duty. In the discharge of this duty the county auditor has no discretion. If he did not perform this official duty within the time the law directed him to do it, he must do it now. That this will give rise to confusion and impose additional labor upon the auditor in reforming his tax lists and upon the county treasurer in.collection of the same is unfortunate, but it does not repeal the law, defeat the levy or destroy the lien of the tax upon the property subject thereto. The same conditions would have arisen had he failed to place any other levy for state or local purposes upon the tax lists within the time and manner provided by law, and yet the state or any political division of the state cannot be permitted to become bankrupt merely because of the default of a ministerial officer in the perfortftance of a plain duty specifically imposed upon hirn by law.

It is further insisted on behalf of respondent that by reason of the provisions of Section 5671, General Code, this tax cannot be legally levied for the year 1913, because that section provides that “The lien of the state for taxes levied for all purposes, in each year, shall attach to. all real property subject to such taxes on the day preceding the second Monday of April, annually.” This same objection would apply with equal force to all tax levies for state and local purposes made after the date preceding the second Monday of April of each year. The fact is that practically all levies, especially those for local purposes, are made after this date. Section 5627, General Code, directs the county commissioners at their March or June session to determine the amount to be raised by taxes. Section 5646, General Code, directs the township trustees to determine on or before the 15th day of May annually the amount of taxes necessary for all township purposes, and Section 5649-3a, General Code, directs that on or before the first Monday in June of each year the county commissioners of each county, the council of each municipal corporation, the trustees of each township, each board of education and all other boards or officers authorized to levy taxes within a county, except taxes for state purposes, shall submit or cause to be submitted to the county auditor an annual budget, and under the provisions of Section 5649-3&j as amended February 16, 1914, the budget commissioners are not required to complete their work until-the third Monday of Atigust. While Section 5671, General Code, fixes the date in each year that the lien of the state for taxes shall attach, yet it by no means follows that this ¡requires'that the tax levy shall be made on or-before'that date. In fact all the legislation upon that, subject is in direct conflict with such construction: ■ On the contrary, it is clear that the amount-of taxes is to be determined subsequently, and ¡the .assess-:, ment then relates back’ to the., date at' which' the taxes became a lien. This question is fully- discussed and the correct conclusion ■ reached >in the case of Loomis, Trustee, v. Von Phul et al., 2 N. P., N. S., 423.

Peremptory zvrit fallowed. • i"

Nichols, C. J., Johnson, Wanamaker., Newman and Wilkin, JJ., concur.  