Opinion
No. 31792
Decided June 29, 1949.
Schools — Building condemned by order of Director of Industrial Relations, when — Resolution to issue bonds certified to county auditor within time limitation, when — Section 2293-15a, General Code — Notice of election defective — Additional tax rate not expressed in dollars and cents — Form of ballot defective — No description of emergency and authority therefor — No statement bond issue beyond limitations heretofore prescribed by law — Purpose not printed in bold-face type — Ballot form permitted electors to express wishes "yes" or "no" — Submission of bond issue for consent of Department of Taxation — Section 2293-15, General Code.
IN MANDAMUS.
This proceeding in mandamus was instituted in this court.
The relators are the Board of Education of the Stockdale Local School District of Pike County and a taxpayer of such district. The respondent is the clerk of the board of education.
The cause was submitted on the petition and demurrer thereto.
The following allegations appear in the petition:
On January 23, 1948, the Director of the Department of Industrial Relations of this state entered upon the records of the department an order, reading:
"Public building order No. 20 — Stockdale local schools. Old frame school (two room) Stockdale, Ohio.
"(1) The toilets for females shall be clearly marked `GIRLS' or `WOMEN' and for males `MEN' or `BOYS.'
"(2) Provide in the front hallway a standard 2 1/2 gallon liquid chemical fire extinguisher * * *.
"(3) This extremely old frame structure has inadequate toilet facilities, questionable water supply, cross lighting, poor heating and ventilation, improper exit doors, with unapproved hardware, hazardous walk from the front door to the street and several other objectionable features which it is impractical to correct; so it is recommended that the use of the structure as a school be permanently discontinued not later than June 1949.
"Items one and two to be complied within sixty days.
"Item three to be complied within eighteen months." (Emphasis supplied.)
By reason of the facts set forth in that order, the board of education on September 9, 1948, under Section 2293-15 a, General Code, adopted a resolution declaring an emergency and the necessity of a bond issue of $67,000 for the purpose of constructing a fireproof, six-room grade-school building "and equipping the same to replace those now condemned," and to submit the question of such issue to the electors on November 2, 1948. The resolution stated the approximate date of the bonds, rate of interest, schedule of maturities and the necessity of a levy of a tax annually outside the limitations imposed by Section 2, Article XII of the Constitution, the clerk of the board of education having theretofore certified the estimated life of the proposed improvement and the maximum maturity of the bonds as 24 years. The resolution was certified to the county auditor and on September 10, 1948, he certified his estimate of the average annual levy expressed in mills for each dollar and in dollars and cents for each $100 of valuation.
The board of education on September 10, 1948, by similar resolution determined to proceed with the election and certified the resolution to the board of elections. A notice of election was advertised once a week for four consecutive weeks in October. The notice of election read, in part, as follows:
"Notice is hereby given that * * * there will be submitted to a vote of the people * * * the question of issuing bonds of said school district in the amount of sixty seven thousand dollars ($67,000) for the purpose of constructing and equipping a new six (6) room, fireproof grade school building to replace those now condemned as provided by law.
"The maximum number of years during which such bonds are to run is 24 years.
"The estimated average additional tax rate outside of the ten mill limitation as certified by the county auditor is four mills."
The ballot used at the election read:
"PROPOSED BOND ISSUE"Shall bonds be issued by the Stockdale Local School District for the purpose of constructing and equipping a new six (6) room fire-proof grade school building to replace those now condemned, in the sum of sixty seven thousand ($67,000) dollars and a levy of taxes be made outside of the ten mill limitation estimated by the county auditor to average four (4) mills for each one dollar of valuation, which amounts to forty cents for each one hundred dollars of valuation, for a maximum period of twenty-four (24) years to pay the principal and interest of such bonds.
"__________ FOR THE BOND ISSUE __________ AGAINST THE BOND ISSUE __________"The result of the election was 264 votes for and 63 against the bond issue, which result was certified by the board of elections to the county auditor, to the clerk of the school board and to the Department of Taxation of Ohio.
On January 4, 1949, the board of education passed a bond resolution authorizing the issuance of the bonds, a copy of the bond resolution was filed with the auditors of Pike and Scioto counties, and a tax was assessed against the taxable property within the school district and collected. The bonds were offered to and rejected by the clerk-treasurer as officer in charge of the bond-retirement fund of the board of education and were duly advertised for sale and awarded to the highest bidder.
The petition alleges that the clerk refused to sign, execute, deliver to the purchaser and receive payment for the bonds for reasons set forth in the petition. The controverted reasons appear in the per curiam opinion.
The relators pray for a writ of mandamus commanding the respondent to sign, execute and deliver the bonds to the successful bidder.
Mr. Wray Bevens, prosecuting attorney, for relators.
Mr. James M. Drennen, for respondent.
The first paragraph of Section 2293-15 a, General Code, reads, in part:
"In school districts where school buildings have been * * * condemned by duly constituted public authority, * * * and where existing limitations make adequate replacement * * * or improvements impossible as determined by the local board of education, such board may declare an emergency. Upon the declaration of an emergency, the local board of education, in accordance with law, shall place before the electors of the district the question of issuing bonds for the replacement * * * of * * * school buildings. The form of the ballot shall describe the emergency existing, the authority under which it is declared, and shall state that the bond issue for emergency purposes is beyond the limitations heretofore prescribed by law and that electors are to express their wishes yes or no. If 65 per centum of the electors voting on the question of such bonds vote in favor thereof, the taxing authority of the school district shall have authority to issue such bonds in accordance with the provisions of this section, the uniform bond act of Ohio and the General Code and the debt service levies for such bonds shall be outside of all limitations on the tax rate." (Emphasis supplied.)
Other provisions of that section and the Uniform Bond Act will be set forth and discussed later.
The first contention of respondent is that there was no condemnation authorizing the board of education to act under Section 2293-15 a, General Code, in view of the fact that the order of the Department of Industrial Relations in item numbered three "recommended" that the use of the structure be permanently discontinued not later than June 1949. Respondent does not, however, discuss the effect of the later language of the order reading, "item three to be complied within eighteen months."
"Condemn" is defined as follows in Webster's New International Dictionary (2 Ed.): "To adjudge or pronounce to be unfit for use or service."
The order was sufficient to condemn the use of the school building and to warrant the board of education declaring an emergency. See Section 4834-10, General Code.
Respondent insists that the board of education failed to comply with the 60-day requirement of Section 2293-19, General Code (118 Ohio Laws, 20), for certifying a bond resolution to the county auditor. The third paragraph of Section 2293-15 a, General Code (118 Ohio Laws, 703, 707), provides that a resolution declaring the necessity shall be certified to the county auditor "at least thirty days prior to the election * * *." Being a later enactment applying to a particular subject, i.e., emergency school bonds, the 30-day provision of Section 2293-15 a applies and not the 60-day period of Section 2293-19. Therefore, the resolution of necessity was certified to the county auditor within the proper limitation of time.
The respondent contends that the notice of election was incomplete in not stating "the estimated average additional tax rate, expressed in dollars and cents for each dollar of valuation." The fifth paragraph of Section 2293-15 a provides that the election on the question of issuing bonds shall be held under the provisions of Sections 2293-21, 2293-22 and 2293-23 a, General Code. Section 2293-21 requires the publication of a notice of election which shall state, among other things, the estimated average additional tax rate, expressed in dollars and cents for each one hundred dollars of valuation as well as in mills for each one dollar of valuation. The statutory requirement added by amendment (118 Ohio Laws, 21) is mandatory and, therefore, the notice of election in the present instance was defective in not expressing the additional tax rate in dollars and cents.
The form of the ballot is questioned by respondent in several respects.
The first paragraph of Section 2293-15 a requires that the form of the ballot shall describe the emergency existing and the authority under which it is declared and state that the bond issue for emergency purposes is beyond the limitations heretofore prescribed by law. None of those mandatory requirements was fulfilled in the present bond proceeding and, therefore, the ballot was defective.
Respondent contends that the ballot did not permit electors "to express their wishes yes or no" as provided in Section 2293-15 a. The ballot followed the form prescribed in Section 2293-23, General Code, for expressing electors' wishes and, therefore, there was a substantial compliance with the emergency bond-issuing statute.
It is contended by respondent that the purpose for which the bonds were to be issued was not printed on the ballot "in bold face type of at least twice the size" as that surrounding it. The failure to observe that requirement of Section 2293-23, General Code, constitutes another defect in the bond proceeding.
Finally, the respondent urges that the consent of the Department of Taxation was not obtained, as required by Section 2293-15, General Code, when the net indebtedness exceeds four per cent of the total value of all property in a school district. The petition alleges the board of elections certified the result of the election to the tax department of Ohio. There are no allegations in the petition as to the net indebtedness of the school district. Therefore, this court cannot determine whether it was necessary to submit the bond resolution to the Department of Taxation prior to the election or whether the certification by the board of elections was for the information of that department.
The demurrer to the petition is sustained and a writ of mandamus is denied.
Writ denied.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART and TURNER, JJ., concur.