Summary
In Waite Hill, this court reaffirmed Twinsburg and held that R.C. 5705.341 imposes a specific duty on the budget commission to deny outside millage unless such revenue is clearly required by the budget of the taxing district or subdivision.
Summary of this case from South Russell v. Geauga Cty. Budget CommOpinion
No. 76-9
Decided June 30, 1976.
Taxation — Tax levy — Outside millage limitation — Certification by budget commission — Properly refused, when.
A county budget commission has a specific duty, under R.C. 5705.341, to refuse to certify a tax levy which is outside the ten-mill limitation, where such levy is not clearly required by the budget of a political subdivision and where the outside millage has not been approved by the electors in the current year.
APPEAL from the Board of Tax Appeals.
On July 24, 1972, the council of the village of Waite Hill adopted a resolution declaring the amount of taxes that may be raised by levy at the maximum rate allowed by law without a vote of the electorate to be insufficient, and declaring the necessity of a levy in excess of such rate.
In pursuance of said resolution, the Board of Elections gave notice of the election on the question of the renewal of a tax for a period of five years at the rate of ten mills (.010) on each one dollar ($1.00) of the tax valuation of the taxable property within said village.
At the general election held November 7, 1972, 219 electors voted in favor of said question, 22 electors voting against.
In May of 1975, two copies of the budget of said village for the year 1976 were filed in the office of the fiscal officer of said village for public inspection, and notice of public hearing thereon, to be held on the 9th day of June 1975, was published in a newspaper of general circulation in said village on May 29, 1975.
The budget for 1976 estimated the January 1, 1976, balance in the general fund to be $505,605.32. The estimated receipts for 1976, including $38,800 requested from the electors, totalled $116,359.47. Also, the budget estimated the expenditures for 1976 to be $373,205.
On June 9, 1975, following the public hearing, said budget was adopted by the council. On the 19th day of June 1975, the budget, in duplicate, was mailed to the county auditor.
On September 6, 1975, the village of Waite Hill received the certificate of the county budget commission of the estimated resources of said village for fiscal year 1976, estimating the general property tax to be $11,400 from the levy of 2.70 mills for current expenses and .30 mills for the police pension fund, both inside the ten-mill limitation.
On September 8, 1975, the council of the village adopted a resolution whereby it levied ten mills outside the ten-mill limitation, as authorized by the electors at the general election held November 7, 1972, a copy of which was certified to the county auditor.
The Budget Commission of Lake County refused to approve the levy of ten mills in excess of the ten-mill limitation upon the 1975 tax duplicate of the village of Waite Hill, as authorized by the electors of said village for current expenses at the general election held on November 7, 1972, for a period of five years including the then current year, 1972.
From this action of the budget commission, the village of Waite Hill appealed to the Board of Tax Appeals, seeking an order: "Approving the levy of ten (10) mills in excess of the ten mill limitation upon the duplicate for the year 1975 for the purpose of providing funds for current expenses for the year 1976."
The Board of Tax Appeals affirmed the action of the budget commission.
The cause is now before this court upon an appeal as of right.
Mr. Wayne E. Davis, village solicitor, for appellant.
Mr. Paul H. Mitrovich, prosecuting attorney, and Mr. David J. Sternberg, for appellee.
The village of Waite Hill in this appeal seeks to require the Lake County Budget Commission to approve the tax levy outside the ten-mill limitation, which was authorized by the voters in 1972 for a period of five years.
It is clear that this controversy is controlled by R.C. 5705.341, which provides, in pertinent part:
"Nothing in this or any section of the Revised Code shall permit or require the levying of any rate of taxation, whether within the ten-mill limitation or whether the levy has been approved by the electors of * * * the political subdivision * * * in excess of such ten-mill limitation unless such rate of taxation for the ensuing fiscal year is clearly required by a budget of the * * * political subdivision properly and lawfully advertised, adopted and filed pursuant to the provisions of Sections 5705.01 to 5705.47, inclusive, of the Revised Code." (Emphasis added.)
This section imposes a specific duty on the budget commission to deny outside millage unless such revenue is manifestly required. And, as this court held in Wise v. Twinsburg (1973), 36 Ohio St.2d 114, a county budget commission is prohibited from certifying a tax levy which would produce revenue in excess of the revenue set out in the budget submitted by the municipality pursuant to R.C. 5705.30. In this case, the voters of Waite Hill have not currently approved this levy outside the ten-mill limitation. Rather, the village council has used the authority given to it under the renewal of a previous year, as provided by R.C. 5705.26, to make an additional levy, and, as such, this action is subject to R.C. 5705.341. There is no right to levy outside the ten-mill limitation unless clearly required by the village's budget.
In the face of the undisputed facts, the village of Waite Hill has not shown the clear need in its budget for this additional levy. Accordingly, the decision of the Board of Tax Appeals is affirmed as being reasonable and lawful.
Decision affirmed.
O'NEILL, C.J., HERBERT, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.