
    The State, ex rel. Ellis, City Solicitor, v. Heuck, County Aud., et al.
    (Decided February 15, 1932.)
    
      Mr. John D. Ellis, city solicitor, and Mr. Edward F. Alexander, for plaintiff.
    
      Mr. Robert N. Gorman, prosecuting attorney, Mr. Jack B. Josselson and Mr. R. E. Bimmonds, Jr., for defendants.
   Hamilton, J.

This is an original action in mandamus, wherein the relator, John D. Ellis, city solicitor of Cincinnati, seeks to compel the county auditor and county treasurer and the trustees of Green township to allocate to the city of Cincinnati certain tax collections credited to Green township.

The matter grows out of the annexation of a portion of Green township to the city of Cincinnati.

The defendants, the county auditor, county treasurer, and trustees of Green township each file demurrers to the petition.

It appears from the petition that on the 21st day of January, 1930, there was filed with the board of county commissioners of the county of Hamilton the application of divers persons for the annexation of certain territory in Green township to the city of Cincinnati, the territory being generally referred to as “Cove-dale;” that on April 4,1930, the board of county commissioners approved the application for annexation and caused the proceedings and plat to be recorded; that thereupon the county auditor, in accordance with the provisions of Section 3557-1, General Code, caused a division of the unincumbered balance on hand in the treasury of Hamilton county, to the credit of Green township, on January 21, 1930 (being the date on which the application for annexation was filed with the county) to be made between said Green township and the city of Cincinnati; that the auditor found there was an unincumbered cash balance to the credit of Green township iñ the sum of $3,035.75; that the value of the taxable property in the said Covedale area constituted 12.4 per cent, of the total value of all taxable property in said township, and thereupon said auditor allocated to the city of Cincinnati the sum of $376.43 of said unincumbered balance of $3,035.75; and that on the 4th day of June, 1930, council of the city of Cincinnati, by ordinance No. 345-1930, duly accepted 'the said application for annexation. The ordinance carried with it an emergency clause, making it effective June 4,1930.

The auditor reported his apportionment of the unincumbered balance as above stated, and, on March 18, 1931, council of the city of Cincinnati, by legislation, duly accepted the apportionment, thereby completing the annexation of the territory.

The petition further recites that since the date January 21, 1930, when the application for annexation was filed, additional tax moneys have been collected by the county treasurer and placed to the credit of Green township; that said collections were for taxes of December, 1929, and January, 1930, and June and July, 1930.

The claim is that the city of Cincinnati is entitled to an apportionment of these taxes collected and placed in the treasury to the credit of Green township subsequent to January 21, 1930, and it is asked that the auditor and treasurer apportion and set aside to the credit of the city of Cincinnati a proportionate share thereof.

The demurrers admit the facts of the petition properly pleaded. We have, therefore, a question of law as to the sufficiency of the petition to entitle the relator to the mandatory writ prayed for.

The statute, being Section 3557-1, General Code, is as follows:

“When proceedings have been commenced to annex a portion of a township, or portions of more than one township, to a municipal corporation upon which the tax levies made by the trustees of such township or townships for the payment of the township debt do not apply, the auditor of the county in which said territory is located shall ascertain and apportion the amount of existing net indebtedness of the township which shall be assumed and paid by the municipal corporation. The apportionment shall be made in the proportion of the total duplicate for the annexed territory transferred to the municipal corporation to the total tax duplicate remaining in and for the unannexed portion of the township or townships. He shall ascertain, adjust and divide between the municipal corporation and the unannexed portion of the township or townships any unencumbered balance on hand to the credit of any fund of such township, in the same proportion as is herein provided for division and apportionment of indebtedness. Provided, however, that no division shall be made of a balance in any fund of a township that is required by law for the retirement of its indebtedness. In case any net indebtedness is assumed by the municipal corporation as herein provided, the council or other legislative authority of such municipal corporation shall provide for the payment of the same by the levy of taxes therefor, or by the appropriation from an appropriate fund; and. the proceeds of such tax levies or appropriation shall be transferred to the proper authorities of the township for the final redemption of its indebtedness. The apportionment provided in this section shall not be in effect until it is accepted by ordinance or resolution, of the council or other legislative authority of such municipal corporation. The passage of such resolution -or ordinance shall be necessary to the validity of the annexation.”

We do not find it necessary to make an extended discussion or analysis of the whole section of the statute to determine the question of law. The last two sentences of the section determine the question. They are: “The apportionment provided in this section shall not be in effect until it is accepted by ordinance or resolution of the council. * * * The passage of such resolution or ordinance shall be necessary to the validity of the annexation.”

Under this provision of the law, it becomes apparent that the relator is not entitled to the relief asked. The auditor made his apportionment. Had the city of Cincinnati been dissatisfied with the apportionment, it had the opportunity to object, and to seek other basis for apportionment than was used by the auditor, and, if not made satisfactorily, it could refuse to accept, by ordinance or resolution the apportionment. Whereupon, no annexation would have taken place.

We have not been aided in determining this case by the attempt at pastoral blank verse in the brief of counsel for the township trustees, or by the caustic reply thereto in the brief of counsel for plaintiff.

What we are asked to do here amounts to this: That we should set aside the ordinance approving the apportionment and proceed to compel an apportionment on the basis conceived to be proper by the relator. Of course, the effect of this would be to defeat annexation of the territory.

The apportionment having been accepted by council, by legislative act, thereby completing the annexation of the territory, the court is without power to take any action the effect of which would be to set aside the ordinance and defeat annexation.

If Green township has moneys belonging to the city of Cincinnati, this is not the way to collect.

The demurrers to the petition will be sustained, and the writ refused at the costs of the relator.

Writ refused.

Ross, P. J., and Cushing, J., concur.  