
    TAXATION — STATUTES —CONSTITUTIONAL LAW.
    [Franklin (2nd) Circuit Court,
    November, 1903.]
    Sullivan, Summers and Wilson, JJ.
    Ellis O. Jones v. Franklin County (Comrs.) et al.
    1. Legislature May Repeal Statutes Without Reason Therefor.
    The legislature has power to repeal a statute although no reason be assigned therefor, or if a reason be assigned which fails, or proves wholly insufficient, the repeal still remains effective.
    2. Courts Will not Correct Legislative Mistakes, When.
    Courts will not correct errors in a statute, or declare it repealed by mistake, unless the errors or mistake appear beyond doubt from its face, or by reading it in connection with others in pari materia; a fortiori where the repealing statute expressly recites the substance of the one repealed.
    3. Statute not Held Repealed by Mistake,.When.
    The fact that a repealed statute is not inconsistent with any of the provisions of the repealing act, or relates to an entirely different subject, is not sufficient to warrant a court in declaring it repealed through mistake; nor will a court determine whether the repealed statute is inconsistent with the repealing act when it is expressly repealed.
    
      4. Act may Contain Two Subjects — Effect Thereof — Constitutional Law.
    Section 16, Art. 2 of the state constitution, which provides that “no bill shall contain more than one subject, which shall be clearly expressed in the title,” is directory merely; hence, Sec. 231 of the act of October 22, 1902 (96 O. L. 96; commonly called the “new municipal code”) expressly repealing Sec. 2823a Rev. Stat., is constitutional, and effectually repeals said section, notwithstanding the latter relates to county tax levies and is in no way connected with the subject of municipal tax levies or the other provisions of said act.
    5. Taxes for County Purpose May be Levied Under Sec. 2823 Rev. Stat.
    The county commissioners have power to levy -taxes for county purposes and the bridge fund under Secs. 28:23 and 2824 Rev. Stat., upon all the taxable properly within the county; and regular levies made thereunder will be upheld, notwithstanding the same levies might have been made under Sec. 2823a Rev. Stat., before its repeal.
    6. Repeal of Supplementary Act does not Affect Act to Which it was Supplementary.
    Section 2823a Rev. Stat., and the amendment thereto of April 23, 1902 (95 O. L. 255; repealed, 96 O. L. 104, Sec. 231), was only supplementary to, and did not repeal, Sec. 2823 Rev. Stat., and the latter statute being in existence at the time of the passage of said supplementary act, and specifically authorizing tax levies for county purposes, was not affected by, or included in the limits of, said supplementary act.
    Section 2823a Rev. Stat. (Repealed) Inconsistent with Municipal Code. -1*
    Under Sec. 860 Rev. Stat., a municipal corporation is not entitled to demand any part of the bridge fund levied by the county commissioners upon the taxable property of {he municipality; and as Secs. 7, 9 and 28 of the new' municipal code (Secs. 1536-100, 1536-102 and 1536-131 Rev. Stat.) confer power upon municipal councils to control, improve and repair bridges within the municipality, and to levy taxes for such purposes, and transfers such duties and powers from the counties to the municipality, it would seem that Sec. 2823a Rev, Stat., which also authorizes county commissioners to levy taxes for such purposes, is inconsistent in such respbcts with said provisions of the :ode.
    ,8. Tax Levies by Counties for all Purposes Must not Exceed One and Eight-Tenths Mills, When.
    The county commissioners are authorized, under Sec. 2820 Rev. Stat., et seq., to levy in each year for all purposes, and are strictly limited to, not exceeding in the' aggregate one and eight-tenths mills on each dollar of value of taxable property within their county, except in cases where it becomes necessary to repair, or rebuild county buildings damaged or destroyed by fire and other casualties.
    9. Levy for County Purposes Must not Exceed One and Three-Tenths Mills— Bridge Fund Five-Tenths Mills — How Reduced.
    A tax levy of seven-tenths mills on each dollar of value of taxable property is authorized by Sec. 2823 Rev. Stat., for county purposes, except that when such levy is deemed insufficient it may be increased six-tenths mills, or one and three-tenths mills in all, in which event the levy for other purposes provided in said section shall be reduced to such extent; under Sec. 2824 Rev. Stat., a levy not exceeding five-tenths mills in any event is authorized for the bridge fund. Hence, a levy of two and four-tenths mills for county purposes (the seven-tenths mills levy being deemed insufficient) will be reduced to one and three-tenths mills, and a levy of one and four-tenths mills for the bridge fund will be reduced to five-tenths mills, the maximum amount allowed by law in each case, respectively; but the total deduetion cannot be made from the bridge fund levy alone.
    
      10. Whether Levy Excessive not Determined on Demurrer, When.
    A court will not determine on general demurrer whether the levy made for the bond redemption fund w-ill yield a sum greatly in excess of the amount required to pay the principal of the maturing bonds and interest thereon for the year, where the petition does not set forth the amount of the face value of the maturing bonds and the accruing interest. Such question is one of fact which cannot be determined on general demurrer.
    11. Constitutionality of Sec. 2823a Rev. Stat. not Decided.
    Whether Sec. 2823a Rev. Stat. was unconstitutional before its express repeal by the new municipal code, not decided.
    Appeal from court of common pleas of Franklin county.
    M. E. Thrailkill and M. B. Earnhart, for plaintiff:
    Right to sue. Sections 5008 and 5848 Rev. Stat.
    Constitutional limitations on taxation. Section 5, Art. 12 and See. 5, Art. 10 of the constitution of Ohio; Sec. 2861 Rev. Stat.
    ' Power to tax. Adler v. Whitbeck, 44 Ohio St. 539, 567 [9 N. E. Rep. 672] ; Mays v. Cincinnati, 1 Ohio St. 268; Debolt v. Insurance Co. 1 Ohio St. 563; Bank of Toledo v. Toledo, 1 Ohio St. 623; Cummings v. Fitch, 40 Ohio St. 56, 62; Cleveland v. Heisley, 41 Ohio St. 670, 676; State v. Plumphreys, 25 Ohio St. 520; Sec. 2834 Rev. Stat.
    No emergency clause in the constitution. Bonham v. Hamilton, 66 Ohio St. 82 [63 N. E. Rep. 597]; State v. Spellmire, 67 Ohio St. 77, 90 [65 N. E. Rep. 619],
    Tax levies. Sections 964a, 2822, 2823 and 2824 Rev. Stat.; State v. Strader, 25 Ohio St. 527, 536.
    The county expense fund is provided for only in Sec. 2823 Rev. Stat.
    The bridge fund is provided for by Sec. 2824 Rev. Stat.
    The excess over the lawful levy may be enjoined. Burroughs, Taxation 399; Cooley, Taxation 347; 25 Am. & Eng. Enc. Law (1 ed.) 191.
    Addition to levy was invalid. Wheeling & L. E. Ry. Co. v. Stewart, 7 Circ. Dec. 193 (13 R. 359) ; Sec. 2825 Rev. Stat.
    The levy under Sec. 2823a Rev. Stat. after its repeal was void. Hirn v. State, 1 Ohio St. 15; Cass v. Dillon,. 2 Ohio St. 607.
    Section 16, Art. 2 of the constitution is directory merely. Miller v. State, 3 Ohio St. 475; State v. Covington, 29 Ohio St. 102; Bloom v. Xenia, 32 Ohio St. 461, 463 ; Seeley v. Thomas, 31 Ohio St. 301.
    Section 2823a Rev. Stat. was unconstitutional. Hixson v. Burson, 54 Ohio St. 470, 481 [43 N. E. Rep. 1000]; New York, C. & St. L. Rv. Co. v. Kistler, 66 Ohio St. 326, 332 [64 N. E. Rep. 130] ; State v. Michael, 12 Dec. 674; State v. Bargus, 53 Ohio St. 95 [41 N. E. Rep. 245] ; State v. Yates, 66 Ohio St. 546 [64 N. E. Rep. 570]; Gaylord, v. Hubbard, 56 Ohio St. 25 [46 N. E. Rep. 66] ; Commissioners v. Rosche Bros. 50 Ohio St. 103 [33 N. E. Rep. 408] ; State v. Ellet, 47 Ohio St. 90 [S3 N. E. Rep. 931]; State v. Brown, 00 Ohio St. 462 [54 N. E. Rep. 525] ; Root v. Board of Education, 52 Ohio St. 589 [41 N. E. Rep. 135] ; Pittsburgh, Ft. W. & C. Ry. Co. v. Martin, 53 Ohio St. 386 [41 N. E. Rep. 690] ; Barbour v. Bank, 50 Ohio St. 90, 94 [33 N. E. Rep. 542; 20 L. R. A. 192] ; Meyer v. Dempsey, 62 Ohio. St. 637; Botefuhr v. Leffingwell, 11 Circ. Dec. 650 (2Í R. 584) ; Cincinnati v. Trustees, 66 Ohio St. 440 [64 N. E. Rep. 420] ; Sec. 2, Art. 12, Const.
    Repeals are to be interpreted by considering the mischief intended to be remedied. (In this case it was trying to remedy special legislation.) When the whole subject of legislation is intended to be revised (as when the code was adopted), and restated and intended as a substitute for former acts, all laws in conflict are repealed. Section 2823a Rev. Stat. which was repealed, was in conflict with the new code, and therefore had to be repealed. 12 Mass. 545; Sutherland, Stat. Constr. Sec. 155; 5 Hill 221, 226.
    E. L. Taylor, Jr., A. T. Seymour and K. T. Webber, prosecutors, for defendants.
   SULLIVAN, J.

This is an action brought by Ellis O. Jones against the board of commissioners, Ewing Jones, county auditor, and W. G. Bowland, county treasurer of Franklin county.

Omitting the averments of the petition setting forth the official capacity of the several defendants and proceeding at once to state the substance of the several averments, upon which plaintiff claims the relief he prays for upon behalf of himself and other taxpayer’s of Franklin county, Ohio, which are as follows: ,'

First, that the population of Franklin county on June 3, 1903, was 164,000.

That the tax valuation of all property of said county was more than $80,000,000, ánd less than $100,000,000, being about $90,000,000.

That said county commissioner on said date made a tax levy of five and eighty-five hundredths mills, on the taxable value, of all property in Franklin county, by the adoption of a resolution by said board — one-half of the tax to be paid December 20, 1903, and the last half June 20, 1904, and in which was included levies for the following purposes:

(1) Two and four-tenths mills county purposes.

(2) One and four-tenths mills for bridge fund.

(3) One and forty-five hundredths mills for payment of bonds and interest.

That the foregoing, together with other levies for the various purposes designated in the resolution, made the total five and eighty-five hundredths mills upon all the taxable property of Franklin c.ounty for the fiscal year of 1903. No other levies were made for said year.

It is averred that the defendant (county auditor) is preparing a tax duplicate for Franklin county, and that he will make up a complete list of all taxable property in said county in the form of a tax duplicate, and under said resolution levy upon all such property said five and eighty-five hundredths mills, and will determine the amount of taxes which may be assessed and levied against each dollar of valuation of such taxable property, including plaintiff’s (thereby casting a cloud upon the title to all of said taxable property), and when complete will deliver said duplicate to the defendant (county treasurer) for collection, who will proceed to collect the same. Whereby the plaintiff and all other taxpayers of said county will suffer irreparable injury.

It is averred that said levy was made under Sec. 2823a Rev. Stat.; that said levy is illegal, unconstitutional, fraudulent and void, for the following reasons:

1. Because the section under which said levy was made was repealed by the general assembly of Ohio on October 22, '1902.

2. That said section was a special act relating alone to Franklin county, and hence in contravention of Sec. 26, Art. 2; Sec. 1, Art. 13; Sec. f>, Art. 10; and Sec. 5, Art. 12 of the constitution of the state, because said act conferred corporate power, and the subject of taxation is of a general nature and said section is not legislative, but judicial and administrative; that the several items of said levy hereinbefore set forth exceed the authority of the statutes in force at the ti'me the same was made, and that no emergency existed at the time.

Plaintiff therefore prays that said auditor be enjoined from making the duplicate above described and delivering same to the county treasurer, and the latter be enjoined from collecting said illegal levy, or so much thereof as may be in excess of the power of the county commissioner to make.

That said excessive levies may be declared illegal and void, and for such other and further relief that plaintiff and other taxpayers, upon the, facts shown, may be entitled to, and upon the final hearing that said injunction, to the extent of said excess, might be made perpetual.

The-petition in effect assails the entire levy, but as counsel for plaintiff, in argument, insisted upon such relief as might be granted, should relate only to and affect the three several items above stated, they have alone been considered. To this petition a general demurrer is filed. Counsel for defendant concede that no levy can be made by the commissioner not authorized by express statute, so that the inquiry is whether the statutes in force at the time the levy was made authorized The amount of levies made for the several purposes above mentioned.

In support of the demurrer, counsel for defendants insist that Seci 2823a Rev. Stat., under which said levies were made, is not repealed by the act of October 22,1902, though it appears among the repealed sections, for it is manifest from the title of the act of October,-1902, that its appearance in the list of repealed statutes is a mistake. The title of the act of October 22, 1902, 96 O. L. 20, reads as follows: i

“An act to provide for a reorganization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent the abuse of such powers, as required by the constitution of Ohio, and to repeal all sections of the Revised Statutes inconsistent herewith.”

There are 231 sections contained in the act, each section representing a different subject in municipal - affairs, and counsel for defendants contend that Sec. 2823a Rev. Stat. neither relates to nor affects any affair pertaining to municipalities, and therefore not inconsistent with any of .the provisions of the act of October 22,1902, and hence furnishes an additional fact in support of their claim that the repeal -of Sec. 2823a Rev. Stat. was a mistake; that Sec. 2823a Rev. Stat. bore no relation to the conditions which the general assembly sought to relieve, but related solely to the power of the county commissioners of Franklin county to levy a tax and appdrtion the same, and therefore is not inconsistent with any provisions of October 22, 1902. Hence it cannot be said it was included in the title to the latter act.

We have had a judicial construction .of Sec. 16, Art. 2 of the constitution, which provides that:

“No bill shall contain more than one subject, which shall be clearly expressed in the title.”

It is only necessary to call attention to one case, as that fully amplifies the judicial construction given the section and the recognized reason for such construction. State v. Covington, 29 Ohio St. 102, 116:

“The provision of the constitution is directory, and not ■mandatory. * * * This is a rule of decision, and is based on grounds of expediency. The rule is amply recognized by all courts of law, and the reason of the rule is this, that less injury results * * * by disregarding than by enforcing the letter of the law.”

So that if Sec. 2823a Rev. Stat. was not inconsistent with any of the provisions of the act of October 22, 1902, yet the fact that the intention to repeal it was not expressed in the title of the bill could not be considered as supporting the claim that its repeal was a mistake. The power of the legislative body to repeal an act must be conceded, though no reason be assigned for the repeal, or if one is given, and it appears wholly insufficient, the repeal is still just as effective. We think therefore, though said section may not fall within the class of those inconsistent with the act of October 22, 1902, yet that fact could not be sufficient to supply the requirement of the rule observed by courts in correcting mistakes in statutes, which is as follows : The claimed “error * * * must appear beyond doubt from the face of the act, or when read in connection with other acts in pari materia.” State v. Archibald, 52 Ohio St. 1, 9 [38 N. E. Rep. 314].

1 Section 2823a Rev. Stat. is repealed by reciting the full substance of 'the section (9G O. L. 104), which alone would seem a sufficient answer to defendant’s claim, that its repeal was a mistake, and a sufficient reason for the court declining to consider the question, whether the act was not inconsistent with any of the provisions of the act of October 22, 1902. But can it be said that it is not inconsistent? Under Sec. 860 Rev. Stat. the city' of Columbus is not entitled to demand any part of the bridge fund levied by the county commissioner, arising from the levy upon the taxable property of the city. Act 96 O. L. 21, Sec. 7, Par. 18, confers power upon «council to control, improve, keep in order and repair, streets, bridges, etc., within the municipality; 96 O. L. 31, Sec. 28, provides that council shall have the care, supervision and control of public highways and bridges within the city, and shall keep them in repair; and 96 O. L. 26, Sec. 9,, authorizes a levy for such purposes. It would seem, from these several sections of the code, that repair of bridges and public roads and. perhaps construction of same, within the city limits and raising funds for such purposes, was to be transferred to the municipality, and if so, to this extent at least Sec. 2823a Rev. Stat. would be inconsistent with the provisions of the code cited.

Act 96 O..L. 21, Sec. 7, Par. 18 of the code expresses no distinction as to bridges already constructed and those constructed after the code went into effect, so that it would seem that the entire burden at least of keeping such structures in repair within municipalities would rest alone upon them. Whether Sec. 2823a Rev. Stat. is inconsistent with any of the provisions” of the code would be- a matter of judgment alone and a question upon which perhaps there might appear strong reasons for á difference of opinion between members of the legislative body, but that a conclusion to repeal it was reached after a consideration of the section, there seems no reasoii for doubt, and hence the repeal' was not through inadvertence or mistake.

This brings us then to the next question. If Sec. 2823a Rev. Stat. was repealed, what, if any, authority did the commissioners then have to levy a tax for the several purposes contained in the resolution of June 3, 1903? Section 2823a Rev. Stat. and the amendment thereto of April, 1902, was a supplementary act to Sec. 2823 Rev. Stat., and it provided that no levies specifically authorized by statutes should be included within the limits fixed in the supplementary act, and therefore it did not repeal Sec. 2823 Rev. Stat. By the latter section they are authorized to levy for 'county purposes seven-tenths of a mill, and under Sec. 2824 Rev. Stat'., for bridges, five-tenths of a mill, and Sec. 2823 Rev. Stat. provides that -whenever, in any county, the levy provided for in the first part of Sec. 2823 Rev. Stat., is deemed insufficient for general county purposes, the commissioners may increase said levy by any amount not exceeding six-tenths of a mill on the dollar valuation, but in such cases the levies for other purposes shall be reduced to the same extent, so that the total levies for all purposes shall not exceed the limits provided in the title and chapter in which said section appears. The 'limits for all purposes in the 'chapter is one and eight-tenths mills, except where it becomes necessary to levy an additional tax to repair or rebuild county infirmary buildings, children’s home buildings, etc., that may have been destroyed by fire or other casualty and then the amount raised should not exceed $10,000.

The .one and eight-tenths mills are divided as follows:

County purposes, seven-tenths of a mill.

Infirmary purposes, six-tenths of a mill.

Bridge purposes, five-tenths of a mill.

Counsel for plaintiff contend that when the commissioners levy six-tenths of a mill provided for by Sec. 2823 Rev. Stat., because the levy of seven-tenths of a mill is insufficient for general county purposes, and made levies for any other purposes provided for by Secs. 2823 and 2824 Rev. Stat., that to the extent of six-tenths of a mill such levies must be reduced, and that the commissioners not having made any other levy, under chapter five, but for county general expense fund and bridge fund, therefore a reduction should be made in the bridge fund. We do not so understand these sections of the statute.

Under Sec. 2823 Rev. Stat., commissioners are authorized to levy for infirmary purposes, six-tenths of a mill. They did not make such levy in this instance, and the levy for county purposes and the bridge fund and the six-tenths of a mill provided for in the concluding provisions of Sec. 2823 Rev. Stat., did not exceed the amount of levy the commissioners were authorized to make. We understand that the purposes of the provision in Sec. 2823 Rev. Stat, providing for the reduction of other levies when seven-tenths of a mill for county purposes has been made and the commissioners should levy the six-tenths of a mill in addition, is to prevent the county commissioners from exceeding the limit of the levies for all purposes provided for in chapter five. Therefore the commissioners were authorized to levy for county purposes one and three-tenths mills, and for bridge purposes, five-tenths of a mill, to which rate these two several levies will be reduced.

Counsel for plaintiff contend that the levy of one and forty-five hundredths mills for the bond redemption fund will yield a sum largely in excess of that required to pay the maturing bonds and interest thereon maturing in the year 1904. He claims that the estimate made by the county commissioners, including interest and the amount of such bonds, is $113,530, but that the levy made will yield a sum of over $130,500.

The petition does not set forth the amount of the face and accruing interest of the maturing bonds of 1904, and as the question presented here is on the general demurrer to the petition, and as to whether the amount claimed by plaintiff is correct is a question of fact, so that the court in considering the general demurrer in the petition cannot pass upon the question.

We are therefore of the opinion that the judgment of the court below upon the demurrer Was correct, and the same judgment will.be entered here, at defendant’s costs. In view of these conclusions, the claim that Sec. 2823a Rev. Stat. was unconstitutional becomes wholly immaterial and therefore unnecessary to be determined.  