Opinion
No. 31458
Decided June 9, 1948.
Public bonds — Notice of election and ballot to state maximum maturity period — Sections 2293-21 and 2293-23, General Code — Bonds may be issued for period less than maximum — Section 2293-26, General Code.
IN MANDAMUS.
This action in mandamus was submitted for final determination on the petition and demurrer thereto filed in this court. Facts hereinafter recited are epitomized from the allegations of the petition.
The board of county commissioners of Franklin county adopted a resolution requesting the county auditor to certify the estimated life of a trunk-line sewer improvement and the maximum maturity of bonds in the sum of $1,500,000. The county auditor certified the estimated life of the improvement to be at least 25 years, the aforestated sum would be required and the maximum maturity period of the bonds would be 25 years.
A resolution of necessity was adopted by the board, and the county auditor thereafter certified the average annual levy which would be required to pay interest on and retire the bonds. The board adopted a resolution determining that the bonds would mature in fifty substantially equal semiannual installments and directing that the question of the issuance of the bonds be submitted to the electors of the county. The newspaper notice of the election stated 25 as the maximum number of years during which the bonds were to run, the ballot set forth the average millage for a maximum period of 25 years to pay the principal and interest, and the bond issue was approved by the required number of voters.
The board of county commissioners later adopted a resolution to issue an installment of $39,900 out of the bond issue, the last bond of the installment to mature in 20 years. The bonds were offered for sale and the board accepted the bid of the highest bidder whose attorney rejected the bonds for the reason that the maximum maturity period was 20 years.
The board of county commissioners adopted a resolution authorizing and directing its clerk to readvertise and sell the bonds, the clerk refused to comply, and the relators, as members of the board of county commissioners, instituted the present proceeding for a writ of mandamus commanding the clerk to proceed in accordance with the authorization and direction of the resolution.
Mr. Ralph J. Bartlett, prosecuting attorney, and Mr. Robert P. Barnhart, for relators.
Mr. David B. Sharp and Mr. William C. Bryant, for respondent.
The sole question before the court is whether bonds may be issued with a maximum maturity period of less than 25 years, where the prior steps in the bond-issuing proceedings specify a maximum maturity period of 25 years.
Counsel for respondent rely on the per curiam opinion in State, ex rel. Curren, Dir., v. Rees, Dir., 125 Ohio St. 578, 183 N.E. 432. In that case the maximum maturity period was stated in three instances as 22 years and in three other instances as 25 years. The notice of election gave the maximum maturity period as 22 years and on the ballots such period was given as 25 years. The journal entry of the Court of Appeals, adopted in the per curiam opinion, held that the provisions of the Uniform Bond Act must be strictly and not liberally construed, that the maximum time for bonds to run cannot be lessened or increased, that a substantial compliance with the provisions of the so-called Uniform Bond Act is not sufficient and that the discrepancy existing in that case was material and impaired the validity of the proceedings in connection with the bond issue.
That case was distinguished on the facts and for the reasons stated in the two later cases of State, ex rel. City of Delaware, v. Main, Mayor, 129 Ohio St. 239, 194 N.E. 454, and State, ex rel. Board of Education of Springfield Local School District, Summit County, v. Maxwell, 144 Ohio St. 565, 60 N.E.2d 183.
In neither of those two later cases did this court hold that the variance, irregularity or discrepancy in maturity dates impaired the validity of the bond-issue proceedings.
Section 2293-9, General Code, explicitly provides that "the maturities of bonds, notes or other evidences of indebtedness * * * shall not extend beyond" the limitations specified in the classifications named in that section, but does not require that all such obligations must run the full period of time.
Section 2293-21, General Code, requires that a notice of election shall state, among other facts, "the maximum number of years during which such bonds shall run," and Section 2293-23, General Code, prescribes the form of ballot setting forth the average millage "for a maximum period" of years to pay principal and interest of the bonds. Those requirements are for the purpose of informing the electors of the greatest length of time they may be compelled to pay principal and interest.
Section 2293-26, General Code, relating to the resolution to issue bonds, although providing that the amount of bonds shall not be greater than that authorized and their purpose shall be in accordance with the prior resolution or ordinance, expressly provides that "the date, rate of interest and maturity * * * need not be the same as those fixed in the prior resolution or ordinance."
From the foregoing summary of applicable statutes, it is apparent that in the case before us, since the maximum maturity period was stated at 25 years in the notice of an election and the ballot, the board of county commissioners could have thereafter fixed the maturity period either at 20 or 25 years, and, therefore, the question of discrepancy in or invalidity of the bond proceedings, raised by the demurrer to the allegations of the petition, is resolved in favor of the relators.
The demurrer to the petition is overruled and a writ of mandamus is ordered.
Writ allowed.
WEYGANDT, C.J., TURNER, MATTHIAS, HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.