Opinion
No. 34563
Decided March 7, 1956.
Uniform Bond Act — Issuance of bonds for county roads — Contents of notice of election — Publication — Section 133.11, Revised Code — Form of ballot — Section 133.13, Revised Code — Statutory provisions mandatory and strict compliance therewith necessary.
IN MANDAMUS.
The relator, the Board of County Commissioners of Hamilton County, initiated a proceeding for the issuance of bonds for the construction, repair and improvement of county roads. Through clerical error the auditor's certificate of the average annual levy estimated the average additional tax rate outside the ten-mill limitation at 0.0927 mills for each one dollar of valuation and $0.00927 for each $100 of valuation, for a maximum period of ten years. Notice of election was published in accordance with the requirements of Section 133.11, Revised Code, except that the millage listed in such notice, as named in the certificate, was incorrect. The election ballot was originally printed likewise with such incorrect figures. The error was discovered prior to election, and a new proceeding was had with a recomputation by the auditor, showing the millage to be 0.186 for each one dollar of valuation and $0.0186 for each $100 of valuation, with a maximum period of ten years. A correct statement of the bond issue was printed and pasted on each ballot over the incorrect statement.
At the election, 128,151 votes were cast in favor of the bond issue, 84,229 against it, and 36,041 ballots were not marked. Of the total number of 248,421 ballots, 864 absent-voter ballots, which had been mailed as originally printed, contained the incorrect millage.
The board of elections certified the passage of the bond issue. The relator passed a resolution providing for the issuance of bonds and requested the respondent, county auditor, to certify a copy thereof, which he refused to do.
By this action in mandamus, instituted in this court, relator seeks a writ requiring the respondent, as fiscal officer of relator, to certify such bond resolution, authorizing the issuance of bonds, to the office of the county auditor, and to accept such resolution as county auditor and to place upon the tax lists and duplicates the taxes therein provided for.
The respondent in his answer contends that the resolution is void and of no force and effect for the reason that the election on the bond issue was invalid and of no effect because of the error in the notice of election and the incorrect ballots submitted to the electors casting absent-voter ballots prior to election.
Mr. C. Watson Hover, prosecuting attorney, Mr. William J. Schmid and Mr. Carl B. Rubin, for relator.
Mr. Kyle F. Brooks, for respondent.
The issue presented is, what is the effect of the error in the notice of election and the incorrect ballots submitted to the absent voters?
Relator contends that the purpose of the statutory requirement as to publication of notice (Section 133.11, Revised Code) is to inform the electors that an election is to be held, and that there has been a substantial compliance therewith.
Section 133.09, Revised Code, requires that "the auditor shall calculate and certify to the taxing authority the average annual levy, expressed in dollars and cents for each one hundred dollars of valuation as well as in mills for each one dollar of valuation, through the life of the bonds."
Section 133.11, Revised Code, providing for publication of notice of election, requires that such notice shall state "the estimated average additional tax rate, expressed in dollars and cents for each one hundred dollars of valuation as well as in mills for each one dollar of valuation outside the limitation imposed" by the Constitution.
The above-quoted statutory requirements, contained in the Uniform Bond Act, are mandatory, and a strict compliance therewith is necessary. State, ex rel. Board of Education of Stockdale Local School District, v. Wheeler, Clerk, 152 Ohio St. 101, 87 N.E.2d 247; State, ex rel. Curren, Dir., v. Rees, Dir., 125 Ohio St. 578, 183 N.E. 432; Board of Education of Ashville Village School District v. Briggs, Aud., 114 Ohio St. 415, 151 N.E. 327.
In the Wheeler case, supra, the notice of election stated that "the estimated average additional tax rate outside of the ten-mill limitation as certified by the county auditor is four mills." This court held that the statutory requirement was mandatory, and that the notice of election "was defective in not expressing the additional tax rate in dollars and cents." A fortiori, an erroneous statement of the additional tax rate in dollars and cents, as in the instant case, is more misleading to the voter than no statement at all.
In the Briggs case, supra, the question was as to the form of ballot, rather than the notice of election. This court held that "a form of ballot which recites only the amount and purpose of the proposed issue and does not disclose the estimated tax levy outside of all existing limitations and the maximum period of years required to pay the principal and interest of such bonds, is not a substantial compliance with Section 5649-9 c, General Code [now Section 133.13, Revised Code]," since "it is far more important to the taxpayer to know what tax it is proposed to levy upon his property, and how long it must run."
This court is of the opinion that in the instant case there has not been a substantial compliance with the statutory requirements, and a writ of mandamus should be and hereby is denied.
Writ denied.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.