Opinion
No. 25479
Decided December 11, 1935.
Conservancy districts — Mandamus to compel enforcement of orders — Special and general statutes in pari materia — Sections 6828-70, 12283 and 12287, General Code — Assessments — Officer's right to collect, exclusive, when — Collections shall be made annually.
1. Section 6828-70, General Code, is a special statutory grant of power to conservancy districts to enforce certain of their orders by the extraordinary writ of mandamus, but this section and Sections 12283 and 12287, General Code, deal with the same subject, are in pari materia and must be construed together.
2. Where the General Assembly has named an official and delegated to him the power to collect particular assessments and required of him an additional bond to cover the amount of such assessments for any one year, the right of such officer to make such collection is exclusive, and such law contemplates that such collection shall be made each year.
ERROR to the Court of Appeals of Butler county.
This is an action brought by the Miami Conservancy District against the Budget Commission of Butler county to compel it to include in its budget for 1935 the delinquent assessments against the city of Hamilton, the city of Middletown and the county of Butler, for the year 1934. The Budget Commission refused to include the delinquencies in its budget, and this action in mandamus is brought to compel it so to do.
The Budget Commission makes the claim that it has no authority under the law to include the delinquencies for 1934 in its 1935 budget, that if it had such authority the Conservancy District is not the proper party to invoke the remedy, and that mandamus is not the proper remedy.
The action was brought originally in the Court of Appeals of Butler county and was submitted there on the amended petition, the answer of the Budget Commission and the reply thereto. The Court of Appeals found against the Conservancy District, and error is prosecuted to this court to reverse such judgment.
Mr. O.B. Brown and Mr. John F. Neilan, for plaintiff in error.
Mr. Paul A. Baden, prosecuting attorney, Mr. John W. Bricker, attorney general, and Mr. William J. Ford, for defendants in error.
The Miami Conservancy District is a corporation under the laws of Ohio and, while it is given many powers not common with other corporations, the act creating conservancy districts was held to be constitutional in the case of County of Miami v. City of Dayton, 92 Ohio St. 215, 110 N.E. 726.
It will be borne in mind at the outset that this action is against political entities and not against individuals. It is argued that if the Conservancy District had the right to proceed against the political subdivisions by mandamus, it would have the same right to proceed against the individual in the same type of action.
This does not necessarily follow. The power of the district to levy and collect assessments is provided for by statute, Sections 6828-51 and 6828-55, General Code. Upon ascertaining the fact of delinquency, the Secretary of the Board of Directors of the district shall provide a certified delinquent tax or assessment list and forward the same, in duplicate, to the County Auditor, who adds the penalty and transmits one copy to the County Treasurer, who shall proceed to collect the tax, levy or assessment and penalty, according to law.
This is a mandatory section, and, so far as we have been able to ascertain, is exclusive. Section 6828-52, General Code, requires the County Treasurer to give a bond to cover the collection of taxes and assessments in a sufficient amount to cover the collection for any one year.
Section 6828-53, General Code, provides that when the assessment certificate is filed in the office of the County Auditor, a lien is thereby created against the real estate upon which the assessment was made.
The Conservancy District claims that it has the right to proceed generally in mandamus, under the broad provisions of Section 6828-70, General Code, which read as follows:
"The performance of all duties prescribed in this act concerning the organization and administration or operation of the district may be enforced against any officer or against any person or corporation refusing to comply with any order of the board by mandamus at the instance of the board or of any person or corporation interested in any way in such district or proposed district. And the board may institute such proceedings in the court of appeals in the first instance."
This section must be read in connection with Section 12283, General Code: "Mandamus is a writ issued, in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station," and Section 12287, General Code, which provides that "The writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law. It may issue on the information of the party beneficially interested."
These sections are in pari materia and must be read and construed together. Whether or not mandamus is the proper remedy is dispositive of this case. Has the Conservancy District a plain, adequate and complete remedy at law?
We find the following statement of law in 38 Ohio Jurisprudence, page 1130, Section 317:
"The right of the state to payment of taxes is paramount to the right of all others, but as all taxes, as well as the methods of collection and the enforcement thereof, are statutory, they must be followed, as they are exclusive."
It was the evident legislative intent when the Conservancy Act was passed that there should be an annual clean-up of assessments, in so far as that was possible. We gather this from the reading of the act in its entirety and from the specific provision that the treasurer's bond is based upon the annual collection. The treasurer is specifically empowered to enforce the collection of these assessments. The assessments become a lien upon the property of the individual or the political entity when certified as provided by law.
As we see it, the Conservancy District has plenary power to compel the County Treasurer to make collection of the assessments, and if the County Treasurer cannot collect in full, then the lien of the Conservancy District may be enforced for the collection of its assessments. We think the Court of Appeals was right in holding that there is no statutory authority authorizing the Conservancy District to proceed directly against the Budget Commission. This right is with the political entity certifying the levy.
It was not the purpose of the Conservancy Act to pyramid assessments; but, as hereinbefore stated, it was contemplated that the assessments should be collected annually, in so far as that was possible.
If the Conservancy District had any rights in mandamus, it proceeded against the wrong party in this action; and inasmuch as it has its lien and right to enforce, it is not warranted in resorting to the extraordinary writ of mandamus. The Court of Appeals arrived at the proper conclusion and its judgment is therefore affirmed.
Judgment affirmed.
WEYGANDT, C.J., WILLIAMS, JONES, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.