alleged that the budget commissioners, in disregard of the duty imposed by law thus to reduce the several estimates, have refused so to do, but have presumed to exercise a discretion in adjusting the amounts of said several budgets in such manner as to allow set forth in its budget and to deduct from the amount of the county budget the sum of $122,900, of which $90,567 was deducted from that portion of said budget which would be raised by levy upon property in said city, and from the budget of the city of Dayton the sum of $353,943, whereby the total levies for said purposes on all property in said city, reduced to terms of mills on the dollar, will be: For city purposes, 3.621 mills; for county purposes, 2.3 mills; for school purposes, 3.929 mills; for state purposes, .15 mill-total, 10 mills. There is a of Dayton, that the value of the taxable prop- poses, .15 mill-total, 10 mills. It is further erty outside of the city taxable in said school district is estimated at $2,235,650, and that the amount of such budget to be raised by a tax levied on property within the city was $667,615.63. The county commissioners of Montgomery county likewise filed the annual budget of the county, in which it appeared the board of education the entire amount that the requirements of the county for the year 1916 for the like purposes would be $676,286. The value of the taxable property in said county outside the limits of the city is estimated at $60,940,000, and the amount of such budget to be raised by a tax levied on the property within the city was $181,383. These budgets were laid before the budget commissioners, and upon examination it was found by them that the total amount of taxes to be raised in said city of Dayton, as shown by said budgets and by the estimate prepared by the auditor of the amount of money to be raised for state purposes-there further allegation in the petition that, if the being no levy for township purposes-excepting provision for interest and sinking fund on bonds issued prior to June 2, 1911, and flood emergency bonds, and bonds authorized by vote of the people, was $444,510 in excess of the amount which could be raised by a levy of 10 mills on each dollar of the tax valuation of the taxable property in said city. Said totals, on the estimate of $169,920,000 tax valuation, would require a levy in mills per dollar of valuation as follows: For school purposes, 3.929 mills; for county purposes, 2.833 mills; for Dayton corporation purposes, 5.704 mills; for state purposes, .15 mill-total, 12.616 mills. pretended action of the budget commissioners is allowed to stand, the amount of taxes collected and turned over to the relator for the purposes for which the same were levied will be vastly short of its proper proportion of the aggregate taxes authorized to be levied in said city and vastly short of the necessities of said city, for which it has no adequate remedy in the usual course of law. The prayer of the petition is that an alternative writ of mandamus issue to the defendants commanding them, on or before a day to be fixed by the court, to adjust the amounts to be raised by taxation upon property in the city of Dayton in proportion to the needs of the said city of Dayton, the county of Montgomery, and the city school district of the city of Dayton, and with regard to their respective powers in the levying of taxes, so that the tax levy upon all property in said city for all purposes, excepting the interest and sinking fund on bonds issued after June 2, 1911, and flood emergency bonds, reduced to terms of mills on the dollar, will be, for city purposes, 4.506 mills; for county purposes, 2.239 mills; for school purposes, 3.105 mills; for state purposes, .15 mill-total, 10 mills. Or show cause, if any they have, why a peremptory writ of mandamus should not issue commanding such reduction. It is alleged in the petition that it there upon became the duty of the budget commissioners to adjust the various amounts to be raised by taxation in said city so that the total amount thereof should not exceed the sum authorized to be levied therein, and to reduce the estimates contained in any or all such budgets by such amount or amounts as would bring the total for the city school district, county of Montgomery and the city of Dayton within the limits provided by law. It is alleged that in the discharge of such duty the budget commissioners should reduce the amount to be raised by taxation by the city of Dayton, the county of Montgomery, and the board of education ratably in proportion | to the needs of said several taxing authorities and with regard to their respective powers in the levying of taxes. It is alleged that by such method of reduction the amount to be levied by the city of Dayton for its operating expenses and interest and sinking fund on bonds issued after June 2, 1911, would be $765,659, and levies in the city of NEWMAN, J. The budget commissioners Dayton for like purposes of the county and of Montgomery county, upon an examination the board of education should be likewise re of the budgets submitted by the city of Dayduced, whereby the tax levy for all property ton, the board of education of the city school in said city, reduced to terms of mills on the district of Dayton, and the county commisdollar, would be: For city purposes, 4.506 sioners of Montgomery county, and the estimills; for county purposes, 2.239 mills; for mates prepared by the auditor of the amount school purposes, 3.105 mills; for state pur- to be raised for state purposes, found that W. S. McConnaughey, City Atty., John C. Shea, and Jay Leach, all of Dayton, for relator. Robert C. Patterson, Pros. Atty., and Roy G. Fitzgerald, both of Dayton, for respondents. forth in itemized form an estimate stating the amount of money needed for their wants for the year 1916. This statute recites at length the numerous matters and things required to be specifically set forth in the budgets, including "such other facts and information as the tax commission of Ohio or the budget commissioners may require.” It is to be presumed in the instant case that the officers and boards submitting these budgets complied with the law. These budgets, under the requirements of section 5649-3c, General Code, are laid before the budget commissioners by the auditor with "such other information" as they may request. the total amount of taxes sought to be raised | sioners, were required to submit, on or be in the city of Dayton exceeded the amount | fore the 1st day of June, 1915, to the counauthorized by law. To raise the amount of ty auditor, their annual budgets, setting money needed for the wants of the city of Dayton, for corporation purposes, as shown by its budget, based on the estimated value of the taxable property of that city, would require a levy of 5.704 mills. To raise the amount required for school purposes, as shown by the budget of the board of education, would require a levy of 3.929 mills, and to raise the amount required for county purposes, as shown by the budget of the county commissioners, would require a levy of 2.$33 mills. These, together with the levy for state purposes (.15 mill), would require a total levy for these several purposes of 12.616 mills. To bring the total levy within the 10-mill limitation provided for in section 5649-2, General Code, the budget commissioners reduced the levy for corporation purposes to 3.621 mills and for county purposes to 2.3 mills, leaving the levy for school poses undisturbed, as well as that for state purposes, the commissioners having no authority to reduce, increase, or in any manner change the sum or sums levied by law for state purposes. State ex rel. Donahey, Auditor of State, v. Edmondson, County Auditor, et al., 89 Ohio St. 93, 105 N. E. 269, 52 L. R. A. (N. S.) 305, Ann. Cas. 1915D, 934. It is further provided in section 5649-3c: "The budget commissioners shall examine such budgets and estimates prepared by the county auditor, and ascertain the total amount proposed pur-county, township, city, village, school district, or to be raised in each taxing district for state, other taxing district purposes. If the budget commissioners find that the total amount of taxes to be raised therein does not exceed the amount authorized to be raised in any township, city, village, school district, or other taxing district in the county, the fact shall be certified to the county auditor. If such total is found to exceed such authorized amount in any township, city, village, school district, or other taxing district in the county, the budget commissioners shall adjust the various amounts to be raised so that the total amount thereof shall not exceed in any taxing district the sum authorized to be levied therein. In making such adjustment the budget commissioners may revise and change the annual estimates contained in such budgets, and may reduce any or all the items in any such budget, but shall not increase the total of any such budget, or any item therein. The budget commissioners shall reduce the estimates contained in any or all such budgets by such amount or amounts as will bring the total for each township, city, vilwithin the limits provided by law. When the lage, school district, or other taxing district, budget commissioners have completed their work they shall certify their action to the county auditor, who shall ascertain the rate of taxes necessary to be levied upon the taxable property therein of such county, and of each township, city, village, school district, or other taxing district, returned on the grand duplicate, and place it on the tax list of the county." It is alleged in the petition that the budget commissioners, in disregard of the duty imposed by law, presumed to exercise a discretion in adjusting the amounts of the several budgets. There is no allegation that there was an abuse of discretion. It is the contention of counsel for relator that when it becomes necessary for the budget commissioners to make reductions of the estimates in the budgets, filed by the different authorities within the taxing district, to bring the total within the 10-mill limitation, the reduction should be made in proportion to the various estimates, so that the resultant shortage, inconvenience, and deprivation will be distributed ratably, rather than imposed altogether upon one of the instruments of local government operating within their several spheres in the community. They are asking the court to require the budget commissioners to proceed along these lines in the matter of the adjustment of the amounts to be raised by taxation, and in their brief they suggest other plans or methods which may be adopted in the event the plan first suggested does not meet the approval of the court. Counsel deny that the budget commissioners have the right to exercise any discretion in the adjustment of these various amounts to be raised so that the total amount shall not exceed in any taxing district the sum authorized to be levied therein. Under the provisions of section 5649-3a, General Code, the city of Dayton, through its council, the board of education of the city school district, and the county commis It is the positive duty of the budget commissioners, in adjusting the various amounts to be raised, to see that the total amount shall not exceed in any taxing district the sum authorized to be levied therein, to wit, 10 mills on each dollar of the tax valuation of the taxable property therein. In the discharge of this duty they are to reduce the estimates contained in any or all budgets by such amount or amounts as will bring the total of the taxing district within the limits provided by law. It is to be observed that they are authorized to "revise and change the annual estimates contained in such budgets." They "may reduce any or all the items in any such budget." According to the contention of counsel for relator, they must reduce the estimates contained in all the budgets. We do "The remedy by mandamus, while appropriate to compel an officer to proceed in a judicial or quasi judicial matter confided by law to his jurisdiction, cannot be invoked to correct his errors, or control his discretion." For the reasons we have given, we conclude that the facts set out in the petition are insuflicient to constitute a cause of action. It is suggested by counsel for the defendants that in this matter the rights of the not think the statute will bear that interpre- taxation to within the limits provided by tation. By its plain provisions the budget law. It is not within the power of the court commissioners are called upon to use their to interfere with a lawful discretion. The official judgment and discretion in the ad- law announced in State ex rel. v. Crites, 48 justment of the various amounts and in the Ohio St. 460, 28 N. E. 178, is in point: reduction which they make. In the absence of fraud, bad faith, or an abuse of discretion, their action as certified to the county auditor cannot be interfered with. It is said that in the case of State ex rel. v. Sanzenbacher, Auditor, 84 Ohio St. 506, 95 N. E. 1155, this court has indicated that in making a reduction the budget commissioners should have due regard to the proportions of the total amount that each taxing board or taxing off-board of education had become fixed, and cer is authorized to levy. Can it be said that that it was a necessary party to this proceedin the present case such regard was not had? ing. The only authority cited in support of The aggregate of all taxes that may be levied this contention is State v. Pilsbury, 31 La. for corporation purposes under section 5649Ann. 1. In that case it was held that any 3a, General Code, is 5 mills; for school pur- third person having an interest in the sucposes the same. When the adjustment and cess of the relator or respondent in a manreduction were made in the present case, the damus suit, or an interest opposed to both, levy for corporation purposes was 3.621 may intervene in the suit. There was no mills; for school purposes 3.929 mills. As holding in that case, as we understand it, we have seen, the budget commissioners, that such person was, a necessary party. A when they examine the budgets, have before proceeding in mandamus is statutory, and them a full and detailed statement of the the only order that can be made is against the financial condition of each taxing authority defendant, commanding the performance of in the taxing district and the data upon an act which the law enjoins as a duty rewhich the needs and requirements of the tax-sulting from the office, trust, or station. ing officers and boards are based. In the Such an order, in many cases, may affect case at bar they deemed it advisable from the many persons. But it is certainly unnecesinformation at hand to reduce the estimate sary to make such persons parties to the proof the city of Dayton for corporation pur-ceeding. poses and to leave undisturbed the estimate Demurrer sustained, and petition disof the board of education. They had authority to do this. One of the purposes in having the estimates of the amount of money needed submitted in itemized form and in requiring a submission of the facts and information provided for in section 5649-3a, is to provide a basis of calculation in the event it becomes necessary to adjust and reduce the amounts. If the contention of counsel for the relator is correct, these detailed statements would serve no purpose. An estimate not itemized would answer the purpose. would be necessary only to have the totals of the different estimates, and the reduction could then be made ratably and in proportion 1. DISTRICT AND PROSECUTING ATTORNEYS to these different totals. It missed. NICHOLS, C. J., and JOHNSON, DONA HUE, WANAMAKER, JONES, and MAT- (93 Ohio St. 42) BOARD OF COM'RS OF BUTLER COUNTY 5(4)-DUTIES AND COMPENSATION-STATUTORY PROVISIONS. [Ed. Note.-For other cases, see District and Prosecuting Attorneys, Cent. Dig. § 22; Dec. Dig. 5(4).] 2. DISTRICT AND This is a proceeding in mandamus. Before Gen. Code, § 4307, prescribing the duties the writ will issue, it must appear that the and providing for compensation of the prosecutduty of reducing the various estimates pro-ing attorney of the police or mayor's court, apportionately, or according to any of the plans ercising what are known as police powers and plies to every court throughout the state exor methods suggested by counsel in their jurisdiction in a municipality. brief, is a duty specially enjoined by law upon the budget commissioners. Section 12285, General Code, provides that a writ in mandamus may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, but it cannot control judicial discretion. The budget commissioners have exercised their judgment in this matter and discharged the function of reducing the various amounts to be raised by PROSECUTING 5(4)-COMPENSATION-AMOUNT. ATTORNEYS Under Gen. Code, § 4307, providing that the prosecuting attorney of the police or mayor's court shall receive such compensation as council may prescribe and such additional compensation as the county commissioners shall allow, the amount allowed by the council and county commissioners is wholly in their judg For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 112 N.E.-10 ment, but it is mandatory on them to allow something. [Ed. Note.-For other cases, see District_and Prosecuting Attorneys, Cent. Dig. § 22; Dec. Dig. 5(4).] OR'S COURT." PER CURIAM. Section 4307, General Code, is as follows: mayor's court shall prosecute all cases brought "The prosecuting attorney of the police or before such court, and perform the same duties, as far as they are applicable thereto, as required of the prosecuting attorney of the county. The city solicitor or the assistant or assistants 3. DISTRICT AND PROSECUTING ATTORNEYS 5(4)-COMPENSATION-"POLICE OR MAYThe municipal court of the city of Hamil- whom he may designate to act as prosecuting atton is a "police or mayor's court" within Gen. torney or attorneys of the police or mayor's Code, § 4307, relating to duties and compensation as council may prescribe, and such addicourt shall receive for this service such compensation of the prosecuting attorney of such a tional compensation as the county commission court. [Ed. Note.-For other cases, see District and Prosecuting Attorneys, Cent. Dig. § 22; Dec. Dig. 5(4). For other definitions, see Words and Phrases, First and Second Series, Police Court.] 4. DISTRICT AND PROSECUTING ATTORNEYS 5(4)-CITY SOLICITOR. Under the express provisions of 103 Ohio Laws, p. 353, § 33, the solicitor for the city of Hamilton is prosecuting attorney of the municipal court. [Ed. Note.-For other cases, see District and Prosecuting Attorneys, Cent. Dig. § 22; Dec. Dig. 5(4).] 5. DISTRICT AND PROSECUTING ATTORNEYS 5(4)-COMPENSATION. Under 103 Ohio Laws, p. 353, § 33, providing that the solicitor for the city of Hamilton shall be prosecuting attorney of the municipal court and that persons designated by him as assistant prosecutors shall receive for their services such salaries as the council shall prescribe, the fact that the section refers to compensation by the council, and not to compensation from the county, does not affect the applicability of the general law in Gen. Code, § 4307, providing for compensation from both city and county. [Ed. Note.-For other cases, see District and Prosecuting Attorneys, Cent. Dig. § 22; Dec. Dig. 5(4).] Error to Court of Appeals, Butler County. Mandamus by the State, on the relation of Benjamin F. Primmer, as City Solicitor of Hamilton, against the Board of County Commissioners of Butler County and others. Judgment for relator, and respondents bring error. Affirmed. Benjamin F. Primmer, as city solicitor of Hamilton, Ohio, filed his petition in the court of common pleas of Butler county praying for a writ of mandamus against the board of county commissioners of said county to allow and fix his compensation for services as prosecuting attorney in the municipal court | of Hamilton, Butler county, Ohio, and to command the county auditor to issue his warrants for said services rendered since January 1, 1914. A general demurrer was filed to this petition, and the same was sustained by the court of common pleas. Error was prosecuted to the court of appeals, which reversed the judgment of the court of common pleas, and to that judgment of reversal error is now prosecuted in this court. Ben A. Bickley, Pros. Atty., of Hamilton, for plaintiffs in error. Benjamin F. Primmer, of Hamilton, for defendant in error. ers shall allow." [1] A merely superficial examination of this statute discloses the fact that its terms are as general as can be made so far as a police or mayor's court is concerned. It reaches out to and applies to every police or mayor's court in the state. And this, too, whether it be by name "police court" or "mayor's court" or some other court, so long as it exercises what are known as police powers and jurisdiction in a municipality. [2] The first sentence of the section imposes a duty upon the prosecuting attorney of such court. The second sentence designates, first, who that prosecuting attorney shall be, to wit, the city solicitor or assistants. The latter part of the second sentence provides for the compensation of such prosecuting attorney, the evident purpose being that the city shall compensate him for the prosecution of city cases, upon allowance of council, and the county, as a subdivision of the state, shall compensate him for services rendered in state cases, upon the allowance of the county commissioners. The amount allowed by the council and the amount allowed by the county commissioners is wholly in their judgment, but the statute makes it mandatory upon them to allow something. [3] The question now arises as to whether the municipal court of the city of Hamilton, Butler county, Ohio, is, within the terms of section 4307, a "police or mayor's court." That it is such is so obviously and manifestly true that it is no more capable of argument than an axiom. [4] Was said city solicitor of the city of Hamilton prosecuting attorney of such municipal court? This is equally apparent from a reading of section 33 of the municipal court act for the city of Hamilton, as found in 103 Ohio Laws, pp. 345, 353. Said section reads as follows: "The solicitor for the city of Hamilton shall also be prosecuting attorney of the municipal court. He may designate such number of assistant prosecutors as the council of the city of Hamilton may authorize. The persons thus appointed shall receive for their services in city cases such salaries as the council prescribe. The prosecuting attorney of the municipal court shall prosecute all cases of a criminal nature brought before such court and perform the same duties, so far as they are applicable thereto, as are required of the prosecuting attorney of the county." Section 1579–122, General Code. [5] It is claimed, however, that there is no provision here for compensation from the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes board of county commissioners, and failing to mention the same, though mentioning his allowance from the council in city cases, the presumption arises that this was intended as exclusive and that he should therefore receive no compensation from the county. However, his allowance of compensation from the county is fixed by the general section heretofore quoted (4307, supra), and if the special act is to control as to compensation it should have expressly provided that such compensation should be in full for all services rendered, or used other apt words excepting it from the operation of the general statute. Otherwise the state of Ohio, through county commissioners, would be compensating city solicitors in part of the cities of the state and not compensating them for the same service in other cities of the state. This being a state statute providing for compensation for services rendered to the state, it should be so construed as to have uniform operation as far as practicable throughout the state. Such construction should be given the special act as to the city of Hamilton as to conform to the general purpose of the general act and allow equal compensation for equal service throughout the state. The allowance of the writ by the court of appeals should therefore be, and is, affirmed. Judgment affirmed. JOHNSON, DONAHUE, WANAMAKER, JONES, and MATTHIAS, JJ., concur. (93 Ohio St. 37) BOARD OF COM'RS OF DARKE COUNTY (Supreme Court of Ohio. Nov. 9, 1915.) (Syllabus by Editorial Staff.) CONSTITUTIONAL LAW 43(2)-DETERMINATION OF CONSTITUTIONAL QUESTIONS Es TOPPEL. Where a board of county commissioners has actively participated in securing the appointment of four freeholders to act as arbitrators in determining the amount which must be paid to another county for benefits to be derived from a ditch improvement in the latter county, under Gen. Code, §§ 6540-6551, such board cannot challenge the constitutionality of the act. [Ed. Note.-For other cases, see Constitution al Law, Cent. Dig. § 41; Dec. Dig. 43(2).] Error to Court of Appeals, Mercer County. Petition by Board of Commissioners of Mercer County against the Board of Commissioners of Darke County. Judgment for petitioner, and defendant brings error. Affirmed. A petition was filed on the 15th day of November, 1910, with the board of county commissioners of Mercer county, Ohio, by certain landowners, residents of that county, praying for the improvement by ditching, deepening, widening, and straightening a cer tain described ditch, drain, and water course in Granville and Recovery townships in that county, setting forth the necessity and benefits thereof, alleging that their lands would be benefited by such improvement, and describing the line and termini thereof. Such proceedings were had that thereafter the county commissioners of Mercer county found in favor of the improvement and ordered the same constructed. It further appearing that these improvements would furnish an outlet ditch for land in Darke county, which drains into a ditch that would enter into the proposed Mercer county ditch, the county commissioners of Mercer county, on the 5th day of March, 1912, and before work was begun in the construction of deepening, widening, and straightening the ditch in Mercer county, caused a notice to be served upon the board of county commissioners of Darke county to meet with them upon the line between Mercer and Darke counties, Ohio, for the purpose of determining how much should be paid by the commissioners of Darke county to the commissioners of Mercer county for the use, benefit, and burden of such outlet ditch in Mercer county, Ohio. The commissioners of both counties met in joint session on the 19th day of March, 1911. That meeting was adjourned until the 25th day of March, 1911, but the commissioners of these respective counties were unable to agree on an amount that should be paid by Darke county to Mercer county for this purpose. Thereupon the board of county commissioners of Mercer county filed in the probate court of that county a petition setting forth these facts, averring that the total cost of the improvement would be about $40,000, that the ditch improvement to be constructed would drain about 21,000 acres of land in Darke county, and prayed for the appointment of four freeholders to estimate and report to the court the amount that should be justly paid by Darke county to Mercer county for the use and benefit of such outlet ditch, in manner and form as provided by section 6545, General Code. Summons was duly served upon the commissioners of Darke county, who thereupon filed in the probate court of Mercer county an answer admitting the allegations of the petition in reference to the filing of the petition, the ordering of the improvements, and the failure to agree, but denying that the outlet ditch would furnish drainage for 21,000 acres of land, and praying that that court appoint two disinterested freeholders, as provided by law, to act with two freeholders appointed by the probate court of Darke county, to estimate and report to that court the amount which should be paid by Darke county to Mercer county for the use and benefit of such outlet ditch, and for such other and further relief as may be just and authorized by law. Thereupon the probate court of Mercer coun For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |