Opinion
No. 77-1386
Decided December 16, 1977.
Mandamus — To compel issuance of tax anticipation notes — — Collateral attack improper, when.
IN MANDAMUS.
Relators, members of the Toledo Board of Education (board), initiated this action in mandamus alleging that respondent, clerk-treasurer of the board, has refused "to perform mandatory ministerial duties necessary to borrow and collect funds to pay current obligations and prevent the temporary or permanent closing of schools."
The material facts of this action are not in dispute; relators have filed a motion for summary judgment alleging that they are entitled to the writ as a matter of law.
On October 28, 1977, the Toledo public schools closed for lack of current operating revenues. On November 8, 1977, the electors of the school district approved a tax levy to enable the schools to reopen and to prevent the temporary or permanent closing of the schools within the district.
On November 29, 1977, the board adopted a resolution authorizing the issuance of tax anticipation notes, which are a vital tool in school financing because of the uneven and staggered distribution of tax revenues. The resolution directs respondent to sign the notes therein authorized and to either purchase the notes for investment in the bond retirement fund or cause them to be sold in accordance with R.C. 133.35 and 5705.194.
Respondent has notified the board in writing that he refuses, and will continue to refuse, to comply with the dictates of the resolution.
Hayward, Cooper, Straub, Cramer Co., L.P.A., Mr. John F. Hayward, Mr. T. Scott Johnston, Mr. Vaughn A. Hoblet and Mr. H. Buswell Roberts, for relators. Messrs. Nusbaum, Silverman, Phillips Wittenberg and Mr. Melvin G. Nusbaum, for respondent.
In order to be entitled to a writ of mandamus, relators must show (1) that they have a clear legal right to the relief prayed for, (2) that respondent is under a clear legal duty to perform the acts, and (3) that relators have no plain and adequate remedy in the ordinary course of the law. State, ex rel. National City Bank, v. Bd. of Education (1977), 52 Ohio St.2d 81, 84.
Respondent admits that the duties he is refusing to perform are mandatory and ministerial. Respondent alleges that he is not, however, obligated to do what may, in his judgment, be declared void at a later time. With respect to the recent tax levy, respondent cites irregularities that deviate from statutory requirements in both the notice of election and the form of the ballot. He asserts that without a valid election, the tax anticipation notes purportedly authorized by the emergency levy may not be supported by future revenues. Respondent fears that he may be personally liable if he issues the notes and the levy is subsequently declared not valid.
We find respondent's defenses to this mandamus action to be without merit.
The levy was approved on November 8, 1977. On November 23, the election results were certified by the Board of Elections of Lucas County.
A certificate of election is conclusive as to the result of an election until set aside or vacated in some manner authorized by law, and is not subject to collateral attack. State, ex rel. Shriver, v. Hayes (1947), 148 Ohio St. 681.
Respondent's raising election irregularities in this action constitutes an improper collateral attack.
An election contest is the specific remedy provided by R.C. 3515.08 et seq. for the correction of all errors, frauds and mistakes which may occur at an election. Haynes, supra. This remedy is specific and exclusive. State, ex rel. Commrs. of the Sinking Fund, v. Brown (1957), 167 Ohio St. 71, 75.
Respondent's position is not as awkward as he alleges. R.C. 3515.09 provides that an election contest action must be filed "within fifteen days after the results * * * have been ascertained and announced by the proper authority."
The public interest in having election contests speedily determined requires promptitude. Jenkins v. Hughes (1952), 157 Ohio St. 186, 190. Compliance with the statutory limitation is a jurisdictional requirement, and a failure to file within that period sets up a bar to an election contest. See McCall v. Bd. of Education (1959), 169 Ohio St. 50; Jenkins v. Hughes, supra.
No election contest has apparently been filed, and the time limitation imposed by R.C. 3515.09 has expired. Respondent's reluctance and refusal to issue the notes are unfounded and improper. Respondent's action disenfranchises the majority of the participating electors within the district who approved the school tax levy.
Relators are entitled to have respondent perform his legal duties, and, as they have no remedy in the ordinary course of the law, the writ of mandamus is allowed.
Writ allowed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.