Opinion
No. 29881
Decided May 3, 1944.
Mandamus — Collection and distribution of conservancy district assessments, levies and penalties — Mandatory duty on county treasurer — Sections 6828-48, 6828-51 and 6828-55, General Code — Prosecuting attorney and county auditor not necessary parties in action against treasurer.Mandamus — Collection and distribution of conservancy district assessments, levies and penalties — Mandatory duty on county treasurer — Sections 6828-48, 6828-51 and 6828-55, General Code — Prosecuting attorney and county auditor not necessary parties in action against treasurer.
IN MANDAMUS.
This action originated in this court by relator filing a petition for a writ of mandamus commanding the respondent as Treasurer of Guernsey county to perform all duties specifically enjoined upon him by law for the collection, report and distribution of delinquent assessments, penalties and interest.
The respondent by answer admits the allegations of the petition as to the organization of the conservancy district, the subsequent proceedings necessary to the issuance of assessment bonds and the certification of annual levies to the County Auditor of Guernsey county. The respondent by his answer admits as true, "so far as the records of his office disclose," the amounts alleged by relator to be due and that the amounts are owed by the respective subdivisions as listed in the petition. By the foregoing admission the respondent admits all the material allegations of the petition, notwithstanding the answer contains a denial of averments, allegations and statements of fact not specifically admitted to be true.
The answer states, as a defense, that the respective subdivisions or their governing authorities, listed as owing the assessments, have never appropriated funds for the payment thereof; that the respondent stands ready and willing to receive the money and take the steps required of him to place the money in the proper channels of distribution; and that he is without the ability or power to institute litigation for the collection of the assessments without the co-operation and assistance of the Prosecuting Attorney and Auditor of Guernsey county, who have not been made parties to this action.
The cause was submitted to this court upon demurrer by relator to the answer of respondent.
Messrs. Fisher, Limbach, Smith Renner, for relator.
Mr. Howard E. Faught, for respondent.
The Conservancy Act of Ohio enjoins upon each county treasurer the duty to collect delinquent assessments, levies and penalties. See Sections 6828-48, 6828-51 and 6828-55, General Code.
In State, ex rel. Miami Conservancy District, v. Baden et al., Budget Commission., 130 Ohio St. 251, 198 N.E. 865, in affirming the judgment of the Court of Appeals holding that the conservancy district could not by mandamus compel the budget commission to include delinquent assessments in an annual budget, this court held that, under Sections 6828-51 and 6828-55, General Code, the right of the county treasurer to make such collection is exclusive and that the provisions of those sections are mandatory.
As the duties of prosecuting attorney and county auditor are enjoined by law and there is no allegation that either has declined or refused to act, neither is a necessary party to the present proceeding.
The demurrer to the answer will be sustained and a writ of mandamus allowed.
Writ allowed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, BELL and WILLIAMS, JJ., concur.
TURNER, J., not participating.