
    The State v. Cappeller.
    Where a hoard of education certifies an estimate of a school tax to the county auditor, who places the same on the tax list in a reduced form, .a citizen and tax payer of the school district, who, five months thereafter, seeks, ky mandamus, on his own relation, to compel the auditor to place the original estimate on the tax list, must satisfy the court that the hoard of education did not consent to the reduction.
    Mandamus. Reserved in tire District Court of Hamilton county.
    On November 1, 1883, a petition was filed in the district court of Hamilton county, in a case entitled The State of Ohio, on the relation of Louis Kramer, against William S. Cappeller, auditor of Hamilton county, which petition, omitting caption, signature of counsel and verification, is as follows: “Now comes the State of Ohior by Louis Kramer, the relator, and represents to the court that Louis Kramer, the relator, is a citizen and tax-payer- in the school district of Cincinnati, in the county of Hamilton, and state of Ohio, and that said school district is a city district of the first class, and that the city limits of the city of Cincinnati are not co-extensive with the limits of the said school district, and that said school, district includes territory without the corporate limits of said, city, which territory has been attached for school purposes to said district, and that the board of education of the said city district, prior to the year 1883, did 'ascertain that said school district included territory without the corporate limits of said city of Cincinnati, and caused to he made a plat of the territory so attached for school purposes, and caused the same to be recorded as a part of the proceedings- of said board, as required by law.
    “ The relator further represents to the cou-nt that the said defendant, Wm. S. Cappeller, is, and during all the time hereinafter mentioned, has been duly elected and qualified, and acting as auditor of Hamilton county aforesaid,
    
      “ The relator further represents to the court that the board of education in the said city district of the first class did, at a regular meeting held between the 3d Monday in April and the 1st Monday in June, 1883, determine by estimate, as nearly as practicable, the amount of money necessary to be levied as a contingent fund to continue the schools of the district, after the state funds were exhausted, to purchase cites for school houses, erect, purchase, lease, repair and furnish school houses, build additions thereto, and for other school . purposes. And the said board of education did certify the amount so estimated, to wit: six hundred and eighty-six thousand three hundred and seventy-five dollars (§686,375), in writing, before the 1st Monday in June, 1883, to Wm. S. Cappeller, the defendant, auditor of the county of Hamilton, to which county the school district as aforesaid belongs.
    
      “ The relator further represents to the court, that it thereupon became and was the duty of said defendant, as auditor aforesaid, to assess the entire amount so estimated and certified as aforesaid, upon all the taxable property of the school district aforesaid, and enter it upon the tax-list of the county treasurer of said county, to collect the same at the same time and in the same manner as state and county taxes are collected, and to pay it to the treasurer of the school district, upon the warrant of the county auditor; but the relator represents that the said Wm. S. Cappeller, auditor as aforesaid, neglects and refuses so to do, and, on the contrary, the said defendant, auditor, refused and still refuses, to assess the amount so certified and enter it upon the tax list, as required by law, well knowing his duty in the premises, and in violation of his duty as said auditor.
    
      “ Wherefore the relator prays that a peremptory mandamus may issue against the defendant, Wm. S. Cappeller, auditor of Hamilton county as aforesaid, commanding him to assess the entire amount so estimated by the board of education of said district, and so certified in writing to the said defendant as auditor of the county as aforesaid, to wit: the said sum of six hundred and eighty-six thousand three hundred and seveniyfive dollars ($686,375), upon all the taxable property of said school district, and enter it upon the tax list of Hamilton county aforesaid, as required by law.”
    On November 1, 1883, the parties appeared in the district court, which then heard the cause and made disposition thereof as follows:
    
      “ This cause came on for hearing, notice having been given to defendant of the application of the relator for a peremptory writ of mandamus as prayed for. The court, being fully advised in the premises, find the facts stated in the petition of the relator are true, and further find that the said estimate of the amount necessary to be levied as a contingent fund, made by the board of education between the 3rd Monday in April and the 1st Monday in June, was, by said board, on the 1st day of June, ordered presented to the board of tax commissioners appointed under the law of April 16, 1883, for approval, and it was so presented and was considered by such commissioners, and the amount was reduced to four hundred and seventy-seven thousand dollars ($477,000), by the board of tax commissioners, and the county auditor placed the amount as reduced upon the tax duplicate of the county, and the duplicate has been delivered bjr the auditor to the treasurer of the county for collection in pursuance of law. The levy sought to be put upon the tax duplicate by this proceeding under mandamus has not been approved by the board of tax commissioners.
    “ And the questions of law arising thereon, are: whether defendant, as auditor of Hamilton county, upon the facts so found, was in duty bound, under the law, to assess and levy the said sum of six hundred and eighty-six thousand three hundred and seventy-five dollars ($686,375), upon the taxable property of the said school district, and enter it upon the tax list of the county. Whether said tax can be legally levied upon the property of the city of Cincinnati, until the same be approved by the board of tax commissioners. Whether the relator is entitled to make the application for the writ of mandamus. And whether said auditor may now be compelled by mandamus to place said levy upon the duplicate. And the court finds that said questions of law are important and difficult, and, upon the motion of both parties to the proceeding, is unanimous in the opinion that the cause and proceeding should be reserved for decision in the supreme court of the state. It is thereupon ordered by the court, that this cause be, and the same is hereby reserved for decision by the supreme court.”
    The petition and journal entry constitute the record, which, properly authenticated, was filed in this court November 5, 1383.
    
      Stallo & Ivittrerlge, for relator.
    1 O. J. Gosgrave, J. M. Dawson and Wulsin c& Perkins, for defendant.
   Okey, J.

In the argument of this cause, counsel have discussed important questions as to the construction of the statutory provisions relating to the public schools in Cincinnati, and questions as to the construction and constitutionality of the act of 1883 (80 Ohio L. 121), relating to boards of tax commissioners in certain cities. But we have not found it necessary to express' an opinion upon any of these questions. "We will assume for the purposes of this case, without so deciding, that when the estimate of $686,375 was presented, the auditor should have placed it on the tax list; and we have no doubt that, in a proper case, Louis Kramer, a citizen and tax payer of the Cincinnati school district, would be a proper relator to enforce by mandamus the performance, by the auditor, of such official duty. The State v. Henderson, 38 Ohio St 644.

In the record it is stated that the board of education, between the third Monday in April and the first Monday in June, 1883, estimated the amount of money necessary to be levied for the school purposes mentioned in the petition, at $686,375, and that the board certified this estimate to Cappeller, county auditor. The allegation, that it thereupon became ánd was the duty of the said defendant, as auditor aforesaid, to assess the entire amount so estimated and certified, as aforesaid, upon all the taxable property of the school distr’ct,” lias reference, of course, to the estimate so made and certified to the auditor ; and it is certainly consistent with the record to say that this act of the board may have been done before the first day of June, and that the auditor, at the time the estimate was so presented, refused to place the same on the tax list. The third Monday of April was the sixteenth day of the month, and the first Monday of June was the third day of the month. If we exclude the second day of June, which -was Sunday, these acts may all have been done, consistently with the record, on any one of the forty secular days intervening between April 16th and June 2d.

Assuming, as under the circumstances I think we may, that these acts were all done before the first day of June, or if done on June 1st, that they were completed before any other step was taken by the board of education, let us notice what followed. On the first day of June, the board of education ordered the estimate so made to be presented to the board of tax commissioners. When it was in fact presented does not appear, but the board of tax commissioners took the estimate into consideration, and reduced such estimate to $477,000, and thereupon the auditor placed the estimate, in its reduced form, on the tax list. Five months have elapsed since that time, and it does not appear that the board of education has, in any way, objected to the action of the board of tax commissioners in reducing the estimate, or the action of the auditor in placing such reduced estimate on the tax list and completing such list for and delivery of the same to the treasurer. If the board of education became satisfied that a mistake had been made, and that the sutn of $477,000 was sufficient, and thereupon acquiesced in, and consented to the action of the board of tax commissioners and auditor, so that the action of the board of tax commissioners became virtually the action of the board of education, surely the writ should not be awarded, even if the law did not clothe the board of tax commissioners with the powers it exercised. In view of the time which has elapsed, the silence of the board of education during the time, the large interests involved, and the inconvenience and expense which would result from the enforcement of an order in accordance with the prayer of the petition, we have no hesitancy in saying that the burden was on the relator, and not on the auditor, to show that there had been no such acquiescence, even assuming that the view of the relator as to the proper construction and validity of the statutes is correct. Indeed, this is only in accordance with the well settled rule. “ In a proceeding by mandamus to compel an officer to do an act which it is. claimed the law enjoins on him as a duty, the existence of all the facts necessary to put him in default must be shown” (Cincinnati College v. La Rue, 22 Ohio St. 469); and “ a mandamus will not be awarded in the absence of a clear right, in the party seeking the writ, to the object sought to bo obtained by it ” (The State v. Yeatman, 22 Ohio St. 546).

Peremptory writ refused.

McIlvaine, ’ J.,

dissenting. Upon the allegations of the petition, expressly found tobe true by the district court, I think it must be presumed that the board of education adhered to its estimate of the amount of money needed for school purposes within their district until the contrary be averred and proved. If this board receded from their estimate and adopted that of the board of tax commissioners, it should have been set up as matter of defense. There is no legal presumption of such fact, nor can this court take judicial notice of it. If such'fact might be inferred from the subsequent inaction of the board of education, the inference might be rebutted by proof.

In my judgment the delay in commencing the action ought not to bar the. right.  