Opinion
Nos. 52052, 52053
Decided March 30, 1967.
Taxation — Realty — Levy outside ten-mill limitation — Procedure — Section 5705.25, Revised Code — Duties of budget commission mandatory — Revised budget — Certification — Mandamus to rescind reduction in amount of levy.
1. In the procedure for imposition of a tax levy in excess of the ten-mill limitation, the duty of the taxing authority, under Section 5705.25, Revised Code, upon certification by the board of elections of a favorable vote, to make the necessary levy and certify it to the county auditor, is sufficiently performed by the adoption of a revised budget setting forth the rate of the levy and delivering a copy of it to the county auditor.
2. When a taxing authority proposes a levy outside the ten-mill limitation to be effective in the current year, it is not expected that it will include such levy in its annual budget, which must be completed before the election.
3. The only power of a budget commission in relation to a levy outside the ten-mill limitation is to determine whether it has been properly authorized. If a favorable finding is required by the circumstances the budget commission must include the levy as voted.
4. A budget commission which refuses to reconsider and revise the budget of a taxing authority which has obtained a favorable vote of the electorate on a levy outside the ten-mill limitation will be required to take the necessary actions by the issuance of a writ of mandamus upon application by the taxing authority.
Mr. Ted S. Cooper, for relator.
Mr. Hugo Alexander and Mr. Nathan Stern, for respondents.
These two cases in mandamus came on for hearing on the petitions of the plaintiff-relator, and the answers of the respondent-defendants, the stipulations and agreement of facts, the exhibits, and the evidence.
An alternative writ of mandamus was allowed in each case to show cause why a peremptory writ of mandamus should not be issued granting the prayer of the relator in each case.
These cases were brought by the Board of Education of the Steubenville City School District, plaintiff-relator. One case was brought against Stephen J. Hamrock, Auditor of Jefferson County, Ohio, defendant-respondent. The other case was brought against the Budget Commission of Jefferson County, Ohio, and Stephen J. Hamrock, Michael E. Entinger and Dominick E. Olivito, members of the Budget Commission of Jefferson County, Ohio, respondents-defendants.
The prayer in the case against said auditor reads in part as follows:
"Relator prays that a writ of mandamus issue against the respondent, requiring him to extend said levy to the Treasurer of Jefferson County, Ohio, of eleven (11) mills on the tax list for the current year for collection * * *."
In the case against the Budget Commission and the members thereof, the prayer in part reads as follows:
"Relator prays that a writ of mandamus issue against the respondent-defendants requiring them to reconsider and revise their action on the budget of the relator, for whose benefit the tax of eleven (11) mills is to be levied. * * *"
The prayers of these two petitions set forth the issues that are before the court. There are no other issues, and what the auditor or budget commission may have done or not have done about other matters is not in issue and is of no particular importance in these cases where it has no direct bearing upon the issues raised by the pleadings in these cases.
There is little or no dispute concerning the material facts in these cases. As required by statute, the board of education as the taxing authority of the Steubenville City School District on August 15, 1966, duly adopted a tax budget for the next succeeding fiscal year of 1967. That was done in compliance with Section 5705.28, Revised Code. It was agreed that the adoption was in accordance with said section of the statute.
Subsequently, said board of education on September 12, 1966, duly adopted a resolution to levy a tax of eleven (11) mills in excess of the ten (10) mill limitation for current expenses of said school district to be levied during the current year of 1966 if a majority electors voting therefor voted in favor thereof. Said resolution, among other things, provided that the amount of tax which would be raised within the ten (10) mill limitation will be insufficient to provide for the necessary requirements of said school district. This resolution was duly certified to the board of elections on or before September 15, 1966.
The budget commission met on October 3, 1966, to consider the budget submitted by said school board. Said budget commission then was informed of the September resolution of said school board to submit the eleven (11) mill levy for current expenses, which levy was to be placed on the tax duplicate for the current year beginning with the tax year 1966. The August budget, however, did not contemplate or include the 11 mills of additional tax.
The budget commission thereafter allowed said school district only ten (10) mills subject to the election instead of eleven (11) mills subject to said election in the budget approved by said budget commission. The action of the commission was then certified back to said school board, together with a resolution accepting the amounts allowed by the budget commission for the school board to approve.
The school board objected to the Budget Commission's not allowing the full eleven (11) mills subject to the election and therefore did not execute or approve the resolution accepting the amounts and rates as determined by the budget commission and authorizing the necessary tax levies and certifying them to the county auditor. [Respondent's Exhibit No. A]
The budget commission had taken the position that the eleven (11) mills would produce more tax money than the budget submitted by the school board showed they would need, so it allowed only ten (10) mills subject to the approval of the voters of the eleven (11) mill levy at the General Election to be held in November.
On November 8, 1966, at the general election the voters approved said eleven (11) mill levy. Said school board on December 28, 1966, adopted what they styled a revised annual budget for the fiscal year of 1967. In schedule B thereof, it is provided:
"Levies outside of ten mill limitation exclusive of debt levies —
"Current expense levy authorized by voters in November 1966 — eleven mills."
They caused this revised budget to be delivered to the budget commission on December 30, 1966.
The budget commission still refused to "reconsider and revise its action on the budget of the subdivision for whose benefit the tax was to be levied" after the returns of the election were fully canvassed.
Thereafter, the treasurer issued to the taxpayers his tax statements for the first half of 1966 which included a levy for ten (10) mills and not eleven (11) mills.
As a result thereof, these actions in mandamus were filed at about the time the treasurer issued his tax statements; thus the issue is before this court.
In its effort to secure said eleven (11) mills for its current expenses said school board proceeded under the authority of Section 5705.192, Revised Code. Said provision in part reads as follows:
"The board of education of a city * * * at any time prior to the fifteenth day of September, in any year, by vote of two-thirds of all members of said board, may declare by resolution that the amount of taxes which may be raised within the ten-mill limitation will be insufficient to provide for the necessary requirements of the school district and that it is necessary to levy a tax in excess of such limitation for the purpose of providing for current expenses of the school district."
The school board in question complied with the provisions of this statute.
The voters at the general election in November, 1966, approved said levy.
The respondents, however, declare that said school board did not comply with a part of Section 5705.25, Revised Code. The preamble or title of said section is:
"Submission of proposed levy; notice of election; form of ballot; certification."
The particular part of said section with which the respondents complained the relator did not comply reads as follows:
"If such additional tax is to be placed upon the tax list of the current year, as specified in the resolution providing for its submission, the result of the election shall be certified immediately after the canvass by the board of elections to the taxing authority, who shall forthwith make the necessary levy and certify it to the county auditor, who shall extend it on the tax list for collection. After the first year, the tax levy shall be included in the annual tax budget that is certified to the county budget commission."
Said section, as pointed out provides that the taxing authority "shall forthwith make the necessary levy and certify it to the county auditor."
This section does not provide how the taxing authority is to make the levy. Nowhere in the statute is the word "levy" defined.
What is meant by levy? What has to be done in order to make a levy?
In re Estate of Zoller, 53 Del. 448, at page 456, 171 A.2d 375, 379, it is stated:
"The word `levy' often, and perhaps usually, means the determination to impose the tax, as distinguished from assessment and collection. * * *
"But the word is also susceptible of other meanings, dependent upon the context in which it is used, and may refer to all the steps, collectively, by which public revenue is raised, or only to the assessment and collection of the tax."
"Who shall forthwith make the necessary levy?" No specific directions are given as to what the school board is to do. In view of what had already been done towards the bringing about this eleven (11) mill levy this could be only one more step towards making of the levy. The statute does not say by resolution or how?
"Such an act, by whatever name it may be called, is properly in the nature of a resolution." Blanchard v. Bissell, 11 Ohio St. 96, at page 103.
The adoption of a revised budget which included the levy of eleven (11) mills and the delivery of it to the county auditor would, in the opinion of the court, sufficiently comply, under the circumstances, with the provisions and the requirements of Section 5705.25, Revised Code, in regard to making the necessary levy and certifying it to the county auditor.
The budget commission contends they have no authority under the law to revise the budget of said school board after it has completed its work and certified its action to said taxing authority. This authority is specifically given to the commission in that part of Section 5705.34, Revised Code, which reads as follows:
"If the levying of a tax to be placed on the duplicate of the current year is approved by the electors of the subdivision under Sections 5705.01 to 5705.47, inclusive, Revised Code, * * * the commission shall reconsider and revise its action on the budget of the subdivision for whose benefit the tax is to be levied after the returns of such election are fully canvassed * * *"
This would be not only authority for doing so, but also a direction to do so.
In the case of State, ex rel., v. Austin, 158 Ohio St. 476, at pg. 480, it is stated:
"In regard to levies outside the 10-mill limitation under the above section, the only power of the budget commission is to determine whether such levies are properly authorized; if so, such levies must be included."
The original budget did not ask for the eleven (11) mills and as heretofore stated, the eleven (11) mills would increase the school board's budget for more than asked for therein. The budget commission say they therefore cannot allow it.
Is it necessary that in the August budget submitted by said school board that it provide for the eleven (11) mills which in September it asked the voters to approve and establish therein that the same was necessary for its current expenses?
By specific provision of a statute, it would appear that the Legislature did not intend that the school board must ask for the eleven (11) mills in its annual budget and this would seem to be a very reasonable provision under the circumstances, where the budget must be filed before the resolution and before the November election. Section 5705.25, Revised Code, which has heretofore been referred to, provides in the last sentence:
"After the first year, the tax levy shall be included in the annual tax budget that is certified to the county budget commission."
This would clearly indicate that the Legislature did not intend that this said eleven (11) mills should be set forth and shown in the annual budget in question.
After the approval of the eleven (11) mills levy by the electors the budget commission had a mandatory duty to revise the school board's budget and had no discretionary powers in reference thereto. The provisions of Section 5705.34, Revised Code, which have already been referred to read:
"the commission shall reconsider and revise its action on the budget of the subdivision for whose benefit the tax is to be levied after the returns of such elction are fully canvassed."
And this is strengthened by the provisions of Section 5705.37, Revised Code, in reference to the powers and authority of the Board of Tax Appeals where it is provided in part as follows:
"This section does not give the Board of Tax Appeals any authority * * * to reduce any levy below any minimum fixed by law."
This would be a minimum fixed by law and even the Board of Tax Appeals would have no jurisdiction or authority to reduce the amount below the minimum fixed and approved by the electors of said subdivision pursuant to Section 5705.192, Revised Code.
The duty of the budget commission after the approval of the eleven (11) mill levy by the electors could not be expressed more clearly than in the words of the statute where it is provided in Section 5705.31, Revised Code, as follows:
"The commission shall ascertain that the following levies are properly authorized and if so authorized, shall approve the following levies without modification:
"(A) All levies in excess of the ten-mill limitation; * * *
"(F) Divisions (A) * * * are mandatory and commissions shall be without discretion to reduce such minimum levies except as provided in such divisions. * * *"
After the approval of the said eleven (11) mill tax levy and the compliance with the section of the statute with reference thereto, it then became ministerial acts on the part of the budget commission and the auditor; the budget commission to revise its action on the budget of said school board, and the auditor to extend it on the tax list for collection.
Mandamus may be issued to compel the performance of purely ministerial duties in regard to taxation where such duties are specifically enjoined by law. 51 Ohio Jurisprudence 2d, Section 329, at pgs. 408 and 409.
Section 2731.01, Revised Code, provides in part as follows:
"Mandamus is a writ, issued in the name of the state to * * * board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station."
A similar case was before the court in State, ex rel. v. Lutz, County Auditor, 42 Ohio App. 345. The third paragraph of the syllabus reads as follows:
"City attorney held entitled to mandamus to compel county auditor to place additional levy voted for poor relief on tax duplicates of county."
In Ohio Attorney General's Opinions, 1964, Opinion No. 1578 which, incidentally, arose in Jefferson County, the syllabus of the opinion reads as follows:
"Where a taxing authority proceeds as authorized by Section 5705.19 et seq., Revised Code, to declare that it is necessary to levy a tax in excess of the ten-mill limitation and that such tax shall be lieved upon the duplicate for the current year, the tax shall, after approval by the electors, be levied on the current duplicate as directed by statute, and there is no requirement that the necessity for the additional taxation must have been included in the budget submitted to the county auditor by the taxing authority prior to the adoption of the resolution of necessity."
The prayer of the petition of the relator in each case will be allowed and a peremptory writ of mandamus may issue ordering the relief prayed for in each of the petitions.
Writs allowed.