Citations
- 129 Ohio St. 272
Full opinion text
Day, J.
The questions presented for our determination are: (1) Whether it is the legal duty of the mayor and of the director of finance to sign and deliver unvoted general obligation city bonds when the annual millage pledged to service outstanding unvoted general obligation bonds is in excess of ten mills, in any one year; (2) Whether the constitutional ten-mill tax limitation constitutes an indirect debt limitation; (3) Whether, in computing the number of mills already pledged, it is necessary to take into consideration the number of mills required to service outstanding special assessment bonds and other unvoted general obligation bonds which are in practice serviced from sources of revenue other than general taxation; and (4) Whether outstanding unvoted bonded indebtedness of all overlapping political subdivisions shall be included in determining whether the proposed bond issue is within the ten-mill limitation.
This court has frequently announced the doctrine that the writ of mandamus will not issue unless there is a plain dereliction of duty on the part of a public officer. The court finds no such dereliction in this case. There is no legal duty reposing upon respondents to sign unvoted general obligation city bonds when the annual millage pledged to service outstanding unvoted general obligation bonds is in excess of ten mills.
Section 2293-8, General Code, requires that bonds issued by municipalities shall be signed by the mayor and by the auditor, or such other officer as may be designated to sign by an ordinance, which, in this proceeding, provided that the mayor and director of finance should sign the proposed bond issue. Those officers having declined to sign the bonds, mandamus is a proper remedy to compel them to perform that specific duty, if the proposed bond issue does not contravene the constitution or laws.
Relator contends that it has a legal right, within the ten-mill tax limitation, to issue the proposed bonds as unvoted general obligation bonds of the city of Portsmouth, Ohio; that the special assessments and water works bonds maturing in 1935 will be excluded from the debt charges thereafter; that 1935 is the year in which the maximum millage will be required, and should not, therefore, be taken into consideration.
This contention we cannot support. The requirements for 1935 must be included in the computations. “The aggregate amount of taxes that may be levied on any taxable property in any subdivision or other taxing unit of the state shall not in any one year exceed ten mills of each dollar of tax valuation of such subdivision or other taxing unit, except taxes specifically authorized to be levied in excess thereof. * * *” Section 5625-2, General Code. It will be observed that there is no exception made of the first year of a bond issue. On the contrary, the phrasing “in any one year” clearly includes each and every year of such bond issue.
Before an issue of general obligation bonds of the city can be valid, provision must be made, in the legislation under which such indebtedness is incurred, for levying and collecting annually by taxation an amount sufficient to pay the interest on such bonds, and to provide a sinking fund for the final redemption at maturity. “No bonded indebtedness of the state, or any political subdivisions thereof, shall be incurred or renewed, unless, in the legislation under which such indebtedness is incurred or renewed, provision is made for levying and collecting annually by taxation an amount sufficient to pay the interest on said bonds, and to provide a sinking fund for the final redemption at maturity.” Section 11, Article XII, Ohio Constitution.
Such provision, however, cannot legally be made if the proposed taxation, when added to the taxation already existing, exceeds one per cent of the valuation of the taxable property. It is admitted that if the year 1935 is included in the computations, as it must be, provision for payment cannot be made within the ten-mill tax limitation. Unvoted general obligation bonds thus issued (%.