the holder thereof shall have a right of action to recover the amount of such claim and interest against such county at any time within ten years from the 'time the cause of action accrues, or from the date of the last payment of principal and interest. (R. S. Sec. 2834c.)

Use of county buildings.

SEC. 5665. The county commissioners may devote the building or improvement which the county has acquired under the circumstances mentioned in the next three preceding sections to any county purpose. (R. S. Sec. 2834c.)

Payments made under unconstitutional act.

SEC. 5666. When in the circumstances named in the next four preceding sections, the county commissioners have entered into contracts with architects or builders for the supply of labor, materials or supervision for the construction of an improvement or building upon the land purchased by the commissioners, in the circumstances named in said sections, and such labor, materials and supervision have been furnished, in whole or in part and such county has received and retains the benefit thereof, such commissioners shall pay upon such contracts the fair and reasonable value of such labor, materials and supervision. The amount so paid shall not exceed the price named in such contracts less all payments that have been made thereon and all set-offs or counter-claims that exist in favor of the commissioners and against the contracting parties. (R. S. Sec. 2834c-1.)

Title to land and building confirmed in county commissioners.

SEC. 5667. The title to the lands and buildings, as provided in the next five preceding sections, shall be in such county commissioners, and such lands and buildings may be devoted to any county purpose, or if, in the opinion of the commissioners, they are not needed for such purpose, they may be sold by the commissioners and the proceeds applied to any county purpose. (R. S. Sec. 2834c-1.)

Bonds may be issued and tax levied.

SEC. 5668. The county commissioners, if they deem it for the best interests of the county, may borrow the necessary money to pay the amount found to be owing upon the contracts as provided in section fifty-six hundred and sixty-six, and issue their negotiable promissory notes therefor extending over a period of not exceeding ten years, and drawing interest not to exceed five per cent. per annum, payable semi-annually. The commissioners may levy a tax upon all the taxable property in such county to pay such promissory notes and interest as they become due. (R. S. Sec. 2834c-1.)

Disposition of surplus under liquor tax.

SEC. 5669. Any surplus in the treasury of a city, village, county or township, arising from taxation upon the business of trafficking in spirituous, vinous, malt or other intoxicating liquor which is not needed for the purposes named in the statutes providing for the distribution of such taxes, may be transferred to any other fund, including the school fund, by an order of the proper authorities entered upon their minutes. (R. S. Sec. 2834d.)

As to distribution of liquor tax, see G. C. § 6093.

The county commissioners are the "proper authorities" referred to in this section to transfer such surplus: Infirmary Directors v. Commissioners, 6 O. N. P. (N. S.) 347, 18 O. D (N. P.) 403.

SEC. 5649-1. In any taxing district, the taxing authority shall, within the limitations. now prescribed by law, levy a tax sufficient to provide for sinking fund and interest purposes for all bonds issued by any political subdivision, which tax shall be placed before and in preference to all other items, and for the full amount thereof. (104 v. 12.)

The tax limitations do not operate as debt limitations in the manner defined in Rabe v. Board of Education, 88 O. S., 403, nor under article XII, section 11, of the constitution, when a board of education, under section 7625, G. C., merely determines to submit the question of the issuance of bonds in a given amount to a vote of the electors. Such limitations apply, however, when after a favorable vote the board proceeds to issue the bonds, and prevent their issuance, unless within the period for which the bonds are to run sufficient interest and sinking fund levies can be made within the tax limitations.

Even in such case the principles referred to have a limited application because of the fact that the bonds are issued by a vote of the people and because of the amendment to section 5649-1, G. C. (104 O. L., 12.5 A. G. R. 1915, p. 486.

A county, as a "taxing district," under sections 5649-1 to 5649-5b, G. C., the Smith one per cent. law, is not limited in the amount of its levy by the amount levied in any preceding year. A. G. R. 1915, p. 1311.

Former bonds shall be legal.

SEC. 5649-1a. All bonds heretofore issued by any political subdivision for a lawful purpose which have been sold for not less than par and accrued interest and the proceeds thereof paid into the treasury, shall be held to be legal, valid and binding obligations of the political subdivision issuing the same. (104 v. 12.)

Tax levy limitation.

SEC. 5649-2. Except as otherwise provided in section 5649-4 and section 5649-5 of the General Code. the aggregate amount of taxes that may be levied on the taxable property in any county, township, city, village, school district or other taxing district, shall not in any one year exceed ten mills on each dollar of the tax valuation of the taxable property of such county, township, city, village, school district or other taxing district for that year, and such levies in addition thereto for sinking fund and interest purposes as may be necessary to provide for any indebtedness heretofore incurred or any indebtedness that may hereafter be incurred by a vote of the people. (103 v. 552.)

The taxing authorities of any taxing district may levy taxes not exceeding the aggregate of ten mills on each dollar of the tax valuation of the property of such taxing district for state, county, township, school and municipal purposes, subject to the further limitation of the paragraphs following.

In addition thereto levies may be made for sinking fund and interest purposes necessary to provide for any indebtedness incurred before the passage of said act, and any indebtedness that may be incurred after the passage of said act by a vote of the people.

A municipal corporation may levy for general purposes, as provided in preceding paragraphs 1, 2 and 3, an aggregate of five mills on the taxable property within such corporation only in the event that such levy of five mills, when added to the levy of state, county, township and school purposes, shall not in the aggregate exceed ten mills on the dollar, and whenever such levies exceed ten mills on the dollar, then it is the duty of the budget commission to scale said levies down in proportion to the amount of each until the total levies so made aggregate ten mills or less.

The five mills which, subject to the qualifications hereinbefore defined, may be levied by

a municipal corporation for corporation purposes, are exclusive of such levies for interest and sinking fund purposes as are or may be necessary to provide for any municipal indebtedness incurred prior to the passage of the act of June 2, 1911, and any indebtedness thereafter incurred by a vote of the people.

The supreme court, therefore, found that the relator was entitled to a peremptory writ of mandamus commanding the auditor of Lucas county, defendant therein, to ascertain the rate of taxes necessary to produce the amounts to him certified by the budget commission of Lucas county, provided that the aggregate (exclusive of the levy for the sinking fund and interest purposes, for indebtedness heretofore incurred, and indebtedness that may have been incurred by a vote of the people) shall not exceed the rate of ten mills,

*

then to enter the

same upon the tax duplicate of Lucas county. Also, that he ascertain the rate of the levy necessary for sinking fund and interest purposes to provide for indebtedness incurred before the passage of said act and any indebtedness that may have been incurred since the passage of the act by a vote of the people, if any, and add such levy to the tax duplicate in addition to said ten mills: State, ex rel., v. Sanzenbacher, 84 O. S. 504.

The meaning of the words "heretofore" and "hereafter" occurring in section 5649-2, General Code, originally enacted on May 31, 1911, and approved on June 2, 1911, but subsequently amended April 16, 1913, by an act which was approved by the governor May 6, 1913, filed in the office of the secretary of state on May 9, 1913, is that the original meaning of these words as established at the first enactment of the section was not changed when it was amended, and that the day to which amended section refers is still June 2, 1911. A. G. R. 1914, p. 577.

Under the Smith one per cent. law, interest and sinking fund levies, for the purpose of discharging indebtedness created after June 1, 1911, by vote of the people are not to be included within the taxes which must be limited to ten mills on the duplicate of the taxing district for all purposes as required by sections 5649-2 and 5649-3.

Such levies are not included within the limitations of five, three and two mills respectively, provided for by section 5649-3a.

Section 3295 known as the Longworth act, intends to refer to and adopt as to townships, the same general provisions with reference to issue of bonds as those which apply to municipal corporations in section 3939, General Code. Therefore, where a township is obliged by reason of limits of taxation to issue bonds upon submission to and approval by vote of the people, a levy for the retirement of such bonds, would be a levy for interest and sinking fund purposes, to provide for the extinguishment of a debt created after passage of the Smith one per cent. law by vote of the electors and such levy would be within the fifteen mill limitation and also within that measured by the aggregate amount levied in the district in 1910, but outside all other limitations of the Smith law. A. G. R. 1912, p. 1176.

When tax levies to be made; budget; county; municipal corporation; township; school; blanks.

SEC. 5649-3a. On or before the first Monday in June, each year, the county commissioners of each county, the council of each municipal corporation, the trustees of each township, each board of education and all other boards or officers authorized by law to levy taxes, within the county, except taxes for state purposes, shall submit or cause to be submitted to the county auditor an annual budget, setting forth in itemized form an estimate stating the amount of money needed for their wants for the incoming year, and for each month thereof. Such annual budgets shall specifically set forth:

(1) The amount to be raised for each and every purpose allowed by law for which it is desired to raise money for the incoming year.

(2) The balance standing to the credit or debt of the several funds at the end of the last fiscal year.

(3) The monthly expenditures from each fund in the twelve months and the monthly expenditures from all funds in the twelve months of the last fiscal year.

(4) The annual expenditures from each fund for each year of the last five fiscal

years. (5) The monthly average of such expenditures from each of the several funds for the last fiscal year, and also the total monthly average of all of them for the last five fiscal years.

(6) The amount of money received from any other source and available for any purpose in each of the last five fiscal years, together with an estimate of the probable amount that may be received during the incoming year, from such source or sources.

(7) The amount of the bonded indebtedness setting out each issue and the purpose for which issued, the date of issue and the date of maturity, the original amount issued and the amount outstanding, the rate of interest, the sum necessary for interest and sinking fund purposes, and the amount required for all interest and sinking fund purposes for the incoming year.

(8) The amount of all indebtedness incurred under authority of section 5649-4 and the amount of such additional taxes as may have been authorized as provided in section 5649-5 of the General Code, setting out each issue in detail as provided in the next preceding paragraph,

(9) Such other facts and information as the tax commission of Ohio or the budget commissioners may require.

The aggregate of all taxes that may be levied by a county, for county purposes, on the taxable property in the county on the tax list, shall not exceed in any one year three mills. The aggregate of all taxes that may be levied by a municipal corporation on the taxable property in the corporation, for corporation purposes, on the tax list, shall not

exceed in any one year five mills. The aggregate of all taxes that may be levied by a township, for township purposes, on the taxable property in the township on the tax list, shall not exceed in any one year two mills. The local tax levy for all school purposes shall not exceed in any one year five mills on the dollar of valuation of taxable property in any school district. Such limits for county, township, municipal and school levies shall be exclusive of any special levy, provided for by a vote of the electors, special assessments, levies for road taxes that may be worked out by the taxpayers, and levies and assessments in special districts created for road or ditch improvements, over which the budget commissioners shall have no control.

Such budget shall be made up annually at the time or times now fixed by law when such boards or officers are required to determine the amount in money to be raised or the rate of taxes to be levied in their respective taxing districts.

The county auditor shall provide and furnish such boards and officers blank forms and instructions for making up such budgets. (102 v. 266.)

Inasmuch as the purchase or construction of a tuberculosis hospital is excepted from the provisions requiring a vote of electors, levies made under section 3141, General Code, for the purpose of discharging an indebtedness, created after June 1, 1911, for the purpose of such a hospital, are within the three mill limitation of the Smith law.

The commissioners are limited to such an issue under section 3141, General Code, as may be made in anticipation of a single levy. A. G. R. 1912, p. 1259.

All tax levies, lawfully made by township trustees for township purposes, except those levies which, by express provision of the statute are made to apply only to taxable property in the township outside of the municipality located therein, must be applied to all the taxable property in the township including the taxable property within the municipal corporation located in said township and said levies are in addition to the levies made in said municipality by the taxing authorities thereof for corporation purposes. A. G. R. 1915, p. 1690.

The levy for county purposes must be the same in each taxing district throughout the county. A. G. R. 1915, p. 1364.

The municipal budget must provide for every object for which moneys are to be raised. Sinking fund and interest on all bonds issued subsequent to June 2, 1911, without a vote of the people must be counted within the ten mill limitation of the Smith One Per Cent. Law. A. G. R. 1912, p. 228.

When the council of a municipality submits to the county auditor a budget whose amount exceeds a five mill levy upon the tax valuation of the corporation, the budget should be returned to the city council to be brought within the legal maximum. A. G. R. 1911-1912, p. 1250.

Under the provisions of Section 5649-3a, General Code, the budget commissioners, in the adjustment of the various amounts of taxes to be raised in a taxing district and in reducing the estimates contained in the budgets, are called upon to exercise their official judgment and discretion. In the absence of fraud, bad faith or abuse of discretion it is not within the power of the court to interfere, and an action in mandamus will not lie to control such discretion or correct an error of judgment. State v. Patterson, 93 O, S. 000,

Section 5649-3a of the Smith one per cent, law, excludes from the consideration of the budget commission in ascertaining internal limitations, special levies for road improvements by township trustees upon authorization of electors. In ascertaining the ten mill limitation and all other limitations, however, such levies must be considered.

Where there is no record of an election authorizing such levy, however, the budget commission need not pay any attention to the same. A. G. R. 1911-1912, p. 671.

Levies for sinking fund and indebtedness created prior to June 2, 1911, are not within the interior limitations of the Smith one per cent. law nor are they within the ten mill limitation. They are, however, within the limitation of the aggregate amount raised for all purposes in the year 1910 and also within the fifteen mill limitation.

The budget commission should reduce any and all levies within the limitations of the Smith law, but levies for interest and sinking fund purposes should be preferred over other levies. A. G. R. 1911-1912, p. 671.

A levy of one mill by the board of education imposed annually for the purpose of reimbursing a library association for services to the public in pursuance of a contract between the board and the association, is within the interior limitations of the Smith law and is not a "levy for sinking fund and interest purposes necessary to provide for indebtedness created prior to the passage" of the Smith law.

The obligation which rests upon the board is not an indebtedness within the meaning of the statute nor is there an "impairment of the obligation of contract" in the effect of the Smith law upon such procedures. A. G. R. 1912, p. 1578.

A levy of taxes made by a board of education for the purpose of providing for the payment of bonds issued in anticipation thereof, under authority of section 7629, General Code, must be made within the limitations of the Smith one per cent. law, and also within the five mill limitation, applicable to boards of education as such, and prescribed by section 5649-3a, General Code. A. G. R. 1913, p. 1381.

County budget commission, members of, powers and duties.

SEC. 5649-3b. There is hereby created in each county a board for the annual adjustment of the rates of taxation and fixing the amount of taxes to be levied therein, to be known as the budget commissioners. The county auditor, the county treasurer and the prosecuting attorney shall constitute such board. The budget commissioners shall meet at the auditor's office in each county on the first Monday in August annually, and shall complete their work on or before the third Monday in that month, unless for good cause the tax commission of Ohio shall extend the time for completing the work. Each member shall be sworn faithfully and impartially to perform the duties imposed upon

him by law. Two members shall constitute a quorum. The auditor shall be the secretary of the board and shall keep a full and accurate record of all proceedings. The auditor shall appoint such messengers and clerks as the board deems necessary, who shall receive not to exceed three dollars per day for their services for the time actually employed, which shall be paid out of the county treasury. The budget commissioners shall be allowed their actual and necessary expenses. Such expenses shall be itemized and sworn to by the person who incurred them and paid out of the county treasury when approved by the board. For the purpose of adjusting the rates of taxation and fixing the amount of taxes to be levied each year the county auditor and the budget commissioners shall be governed by the amount of the taxable property as shown on the auditor's tax list for the current year; provided, that if the auditor's tax list has not been completed, the county auditor shall estimate as nearly as practicable the amount of the taxable property for such year and such officers shall be governed by such estimate. (106 v. 180.)

Examination of budgets, adjustments and certificates.

SEC 5649-3c. The auditor shall lay before the budget commissioners the annual budgets submitted to him by the boards and officers named in section 5649-3a of this act, together with an estimate to be prepared by the auditor of the amount of money to be raised for state purposes in each taxing district in the county, and such other information as the budget commissioners may request, or the tax commission of Ohio may prescribe. The budget commissioners shall examine such budgets and estimates prepared by the county auditor, and ascertain the total amount proposed to be raised in each taxing district for state, county, township, city, village, school district, or other taxing district purposes. If the budget commissioners find that the total amount of taxes to be raised therein does not exceed the amount authorized to be raised in any township, city, village, school district, or other taxing district in the county, the fact shall be certified to the county auditor. If such total is found to exceed such authorized amount in any township, city, village, school district, or other taxing district in the county, the budget commissioners shall adjust the various amounts to be raised so that the total amount thereof shall not exceed in any taxing district the sum authorized to be levied therein. In making such adjustment the budget commissioners may revise and change the annual estimates contained in such budgets, and may reduce any or all the items in any such budget, but shall not increase the total of any such budget, or any item therein. The budget commissioners shall reduce the estimates contained in any or all such budgets by such amount or amounts as will bring the total for each township, city, village, school district, or other taxing district, within the limits provided by law.

When the budget commissioners have completed their work they shall certify their action to the county auditor, who shall ascertain the rate of taxes necessary to be levied upon the taxable property therein of such county, and of each township, city, village, school district, or other taxing district, returned on the grand duplicate, and place it on the tax list of the county. (102 v. 266.)

The budget commission is not an independent levying authority. Its discretion must not be exercised beyond the province of preventing levies in excess of legal limitations, and when the amounts certified to it are within such limitations it is not empowered to make reductions therein.

The budget commission must be allowed a reasonable discretion, however, in making allowances for estimated increases in the duplicate between the time of making up the annual budget and the time when the duplicate is transmitted to the county treasurer by the county auditor through the agency of the county auditor and board of review. A. G. R. 1912, p. 1795. Though the General Code provides that the auditor mav limit excesses against any individual where the tax payer has not paid taxes, and that the county commissioners may allow a refund to a tax payer who has paid under an erroneous levy, these provisions do not apply to the machinery of the Smith one per cent, tax law, when the error is attributable to the budget commission itself in its general certification of the levy to the auditor.

Any remedy in the way of re-adjustment must be procured through the budget commission itself. A. G. R. 1912, p. 1086.

Appropriations each fiscal half year.

SEC. 5649-3d. At the beginning of each fiscal half year the various boards mentioned in section 5649-3a of this act shall make appropriations for each of the several objects for which money has to be provided, from the moneys known to be in the treasury from the collection of taxes and all other sources of revenue, and all expenditures within the following six months shall be made from and within such appropriations and balances thereof, but no appropriation shall be made for any purpose not set forth in the annual budget nor for a greater amount for such purpose than the total amount fixed by the budget commissioners, exclusive of receipts and balances. (102 v. 266.)

The Smith law deals primarily with county needs and their relation to taxation revenues and their expenditures, and in this connection the "fiscal year" is established by the provision for the semi-annual settlements between the county auditor and county treasurer, for the reason that by these arrangements, the revenues collected for county purposes first become available. Therefore, March 1st, being a date when these sums first become available, such date must be considered the beginning of the "fiscal year" and appropriations provided for under section 5649-3d must be made for that year. A. G. R. 1912, p. 1127.