Opinion
No. 32094
Decided March 29, 1950.
Uniform Bond Act — Section 2293-19 et seq., General Code — Adoption of resolution of necessity institutes "proceeding" — Required statutory steps constitute "pending proceeding" unaffected by amended statute — Section 26, General Code — Amendment reducing approval vote from 65 to 55 per cent — Section 2293-23, General Code (123 Ohio Laws, ___) — Inapplicable to election held after passage of resolution of necessity.
1. The provisions (Sections 2293-19 to 2293-23, General Code) of the Uniform Bond Act, establishing the method of issuing bonds for public improvements and the levy of a tax outside the constitutional and statutory limitations to pay interest on and to retire such bonds at maturity, contemplate essential steps by the taxing authority culminating in a vote by the electors on the proposed bond issue and tax. The adoption by the taxing authority of the resolution declaring the necessity of such bond issue institutes a "proceeding" which continues until the approval or rejection of the bond issue by the electors.
2. The steps required by Sections 2293-19 to 2293-23, General Code, as a prerequisite to the issuance of bonds outside the constitutional and statutory limitations constitute a "pending proceeding" from and after the adoption of the resolution of necessity, and an amendment to these statutes does not affect proceedings commenced prior to the effective date of such amendment, such proceedings being saved therefrom by the provisions of Section 26, General Code, that "whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal * * * unless otherwise expressly provided in the amending or repealing act."
3. Where, after the passage of a resolution declaring the necessity of a bond issue and after completion of other requisite steps in the proceeding, but prior to the election held in conformance with the resolution, the General Assembly amended Section 2293-23, General Code (123 Ohio Laws, ___), by reducing the vote percentage required to authorize the issuance of the bonds outside constitutional and statutory limitations from 65 per cent to 55 per cent, the amended statute is not applicable to such election.
IN MANDAMUS.
This case originated in this court. The petition filed herein sets forth the following allegations.
Relator is a municipal corporation under the laws of the state of Ohio, charged by law with the levying of taxes and the issuance of bonds for the construction, operation and maintenance of relator's park and playground system. Respondent, James G. Flick, is the duly appointed, qualified and acting auditor of relator.
On July 15, 1949, the 98th General Assembly of Ohio passed Amended House Bill No. 58, entitled:
"To liberalize the vote requirement for approval of bond issues by lowering the vote required for approval from sixty-five per cent to fifty-five per cent and for that purpose to amend Sections 2293-15 a, 2293-23 and 2293-23 c of the General Code."
The bill was subsequently approved by the Governor and became effective on October 25, 1949.
Council of relator, on September 7, 1949, pursuant to the provisions of the Uniform Bond Act and in view of the provisions of Amended House Bill No. 58, adopted a resolution declaring the necessity of and authorizing the submission to a vote of the people of a bond issue in the sum of $2,450,000 for parks and playground improvements, and the levy of a tax outside the ten-mill limitation to pay the interest on and retire the bonds. A copy of the resolution was certified to the auditor of Hamilton county and he, in accordance with law, calculated and certified to council the annual average levy throughout the life of the bonds required to pay interest on and retire them.
On September 21, 1949, council of relator adopted a resolution determining to proceed with the referendum and authorizing and directing the Board of Elections of Hamilton County to prepare the ballots and make other necessary arrangements for submission to the voters of relator the question of issuing such bonds and the levy of a tax outside the ten-mill limitation. A copy of the resolution was certified to the Board of Elections of Hamilton County and all the necessary steps were taken as required by law to submit the question of issuing the bonds to the electors of relator at the general election, November 8, 1949, and such question was submitted to the electors at that general election.
Eighty-five thousand, one hundred and sixty-two voters, comprising more than 59 per cent of those voting on the question at such election, voted in favor of the bond issue and 56,946 voted against it.
On January 11, 1950, council of relator adopted a resolution declaring its intention to issue installment bonds outside the ten-mill limitation in the sum of $2,450,000 for park and playground purposes, as authorized by the electors at the general election held on November 8, 1949, and directing James G. Flick, city auditor, to certify his estimate of the life of the permanent improvement proposed to be acquired in connection with the issuance of an installment of such bonds in the sum of $50,000, as required by Section 2293-2, General Code.
Respondent refused and still refuses to certify such estimate, for the sole reason that the bonds were not authorized by the electors on November 8, 1949, since a 65 per cent affirmative vote was necessary to approve the bonds and they received only a 59 per cent affirmative vote. The respondent, except for the reason assigned by him for refusing to certify his estimate is otherwise ready and willing to make the certification.
All proceedings and requirements, prescribed and provided by law for submitting the question of issuing bonds outside the ten-mill tax limitation to the electors of relator, have been done and duly performed and, under the law governing the election on the matter of issuing the bonds here in question, not more than a 55 per cent affirmative vote was necessary for approval.
Relator is desirous of issuing an installment in the amount of $50,000 of such bonds but is prevented from doing so solely by the refusal of respondent to certify his estimate as required by Section 2293-2, General Code.
Relator claims that it is without adequate remedy at law other than by the issuance of writ of mandamus.
Relator prays that a writ of mandamus issue commanding respondent to certify to the council of relator his estimate of the life of the permanent improvement proposed to be acquired from the proceeds of the installment of bonds, in the amount of $50,000 for park and playground purposes, as authorized by the electors of relator at the general election held November 8, 1949, and for all other proper relief.
To the petition the respondent filed a general demurrer.
Mr. Henry M. Bruestle, city solicitor, and Mr. James W. Farrell, Jr., for relator.
Mr. Ed F. Alexander, Messrs. Squire, Sanders Dempsey and Mr. Robert F. Denison, for respondent.
The determination of the question presented by the demurrer requires this court to construe Section 26, General Code, and determine its applicability to a proceeding for the issuance of bonds, pursuant to Sections 2293-19 to 2293-23, inclusive, General Code.
The particular question presented relates to the amendment of Section 2293-23, General Code, effective October 25, 1949, altering the vote requirement for authority to issue bonds by reducing the vote required for approval from 65 per cent to 55 per cent.
Sections 2293-19 to 2293-23, inclusive, General Code, are a part of the Uniform Bond Act and provide the procedure whereby political subdivisions may issue bonds and levy taxes outside the ten-mill limitation fixed by Section 2, Article XII of the state Constitution, and outside certain statutory debt limitations prescribed by Sections 2293-13 to 2293-18, General Code.
Section 26, General Code, provides:
"Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act."
It is agreed that the steps required by the Uniform Bond Act, as set forth in Sections 2293-19 to 2293-23, inclusive, General Code, constitute a "proceeding" as that term is used in Section 26, General Code. The relator contends, however, that the percentage of the vote, necessary to approve the bonds, is not involved in the proceeding, but that the proceeding had as its purpose only the submission to the electors of the question whether the bonds should be issued, and that all steps in such proceeding were completed before the submission of the proposal to the electors. The relator urges that at the time of the change in the percentage of the vote required for approval of such proposal there was no proceeding pending as that term is used in Section 26, General Code, and, therefore, the lesser percentage prescribed by the amendment of Section 2293-23, General Code, was sufficient for approval of the proposed bond issue.
The respondent contends that the proceeding to submit the question to the electors was a "pending proceeding" at the time of the amendment; that under the Uniform Bond Act the initial resolution is the jurisdictional step ( State, ex rel. Wuebker, v. Bockrath et al., Trustees, 152 Ohio St. 77) and that the law applicable at the time of the initial resolution applied throughout the proceeding of which the election itself was a part and within the purview of Section 26, General Code.
It must be noted that the General Assembly did not exercise its prerogative to expressly provide in the amending or repealing act that the restrictive provisions of Section 26, General Code, do not apply. As stated in the opinion in State, ex rel. Andrews et al., Bd. of Commrs., v. Zangerle, Aud., 101 Ohio St. 235, 244, 128 N.E. 165, "if the legislature had intended, in view of said Section 26, to include pending improvements theretofore ordered, or assessments theretofore made, it could have easily and clearly so expressed its plain purpose, and not left it to mere implication, which under the statute is obviously insufficient." The effect of Section 26, General Code, as a declaration of policy that statutes are to have a prospective rather than retrospective operation is fully discussed in the case of Summit Beach, Inc., v. Glander, Tax Commr., ante, 147.
A consideration of the question presented may be found in many previous decisions of this court. The following language from 33 Ohio Jurisprudence, 50, Section 40, is pertinent:
"The procedure for the issuance of public securities is governed, as a general rule, by the law in force at the time of the adoption of the resolution or ordinance providing for such issue.
"Since a resolution or ordinance declaring for or in favor of a highway improvement, or fixing the assessment therefor, is a `proceeding,' within the contemplation of Section 26, General Code, relating to the effect of the amendment or repeal of statutes, the rate of interest on bonds issued for the payment of the cost of such improvement, or in anticipation of assessments therefor, is governed by the law in force at the time of the institution of such proceeding, and is not affected by a subsequent amendment thereof, permitting a higher rate of interest, which is not `expressly' made applicable to pending proceedings."
The following cases support the text: Raymond v. City of Cleveland, 42 Ohio St. 522; City of Cincinnati v. Seasongood, 46 Ohio St. 296, 21 N.E. 630; City of Cincinnati v. Davis, 58 Ohio St. 225, 50 N.E. 918; State, ex rel. Andrews, v. Zangerle, Aud., supra; State, ex rel. Bd. of Edn. of City School Dist. of Cincinnati, v. Ach, 113 Ohio St. 482, 149 N.E. 405; State, ex rel. City of Toledo, v. Weiler, 113 Ohio St. 443, 149 N.E. 326, and State, ex rel. Johnson, City Solicitor, v. Chandler, Aud., 105 Ohio St. 499, 138 N.E. 67.
It seems clear from a consideration of the many cases involving the question presented, heretofore decided by this court, that amended Section 2293-23, General Code, must be interpreted and applied by the rule declared in Section 26, General Code, and that since it was not "otherwise expressly provided in the amending or repealing act" it in no manner affects the pending proceeding.
That the election whereby the issuance of bonds is authorized is an essential part of the proceeding clearly appears from Section 2293-23, General Code, which prescribes the form of the ballot and the percentage of the vote required to authorize the issuance of bonds, all of which are made a prerequisite to proceeding further under the provisions of the Uniform Bond Act.
Therefore as to that proceeding the percentage of a vote required to authorize the issuance of bonds remains unaltered.
It follows that the demurrer to the petition is sustained and the writ of mandamus prayed for is denied.
Writ denied.
WEYGANDT, C.J., HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.