State ex rel. Franklin County Conservancy District v. Valentine

Donahue, J. Section 6828-43, General Code (Section 43 of the Conservancy Act of Ohio, 104 O. L., 13, 35), provides: “As soon as any district shall have been organized under this act, and a board of directors shall have been appointed and qualified, such board of directors shall have the power and authority to levy upon the property of the district not to exceed three-tenths of a mill on the assessed valuation thereof as a level rate to be used for the purpose [444] of paying expenses of organization, for surveys and plans, and for other incidental expenses which may be necessary up to the time money is received from the sale of bonds or otherwise.” The expenses incurred by the board of directors of the Franklin county conservancy district, and paid from time to time ‘from the general fund of Franklin county, Ohio, were for the purposes named in this section, for which this levy of three-tenths of a mill is authorized. The fund arising from this levy, together with advancements made from the general county fund, as authorized by the same section, constitutes the preliminary fund named in Section 6828-42, General Code. It is clear that this preliminary fund is the primary fund from which these expenses for organization, surveys and plans, and other incidental expenses, should be paid. It is equally clear that the money from the general funds of the county used for the payment of these expenses was not intended by the legislature as a permanent addition to the preliminary fund, but merely an advancement or loan to it in anticipation of the collection of this levy; so that the final and only source of the preliminary fund defined in Section 42 of the Conservancy Act is this levy of three-tenths of a mill upon the assessed valuation of the property of the district. Section 43 of the Conservancy Act, which authorizes this levy, specifically designates the purposes for which the proceeds- of this levy shall be used. . It follows, therefore, if the general funds of the county are but loaned or advanced to the prelimi [445] nary fund of the. conservancy district, in anticipation of the levy, that the proceeds of this levy must be applied to the reimbursement of the general funds of the county. • If there were any doubt upon this proposition, the facts in this case would, nevertheless, require that the proceeds of this levy should be applied to the reimbursement of the general funds of the county. The same section that authorizes the payment of these expenses out of the general funds of the county also provides that “upon receipt of funds by the district from the sale of bonds or by taxation or assessment the funds so advanced by the counties shall be repaid.” This plain provision of the statute is mandatory. It would be idle to discuss the question of the authority of the board of directors to order repayment to the county fund out of other funds in its possession or control, when it has received no funds except this one arising from the tax levy of three-tenths of a mill upon the assessed valuation of the property within the conservancy district. While the fund arising from this levy is undoubtedly the proper and primary fund out of which repayment should be made to the county fund, nevertheless the general assembly of Ohio has safeguarded the general funds of the county by this mandatory provision requiring reimbursement upon the receipt of funds from any source whatever. The board of directors of the conservancy district has no discretion to delay the reimbursement of the general fund of the county after it receives funds from any source provided by the [446] statute, but must forthwith apply these funds to the repayment of the advancements made from the general fund of the county; and even if some other funds were so applied it would seem from this legislation to be the clear duty of the board of directors to immediately reimburse the fund so depleted from the proceeds of its levy for the preliminary fund, for it is expressly for the payment of these expenses that this levy is authorized. The demurrer to the answer is overruled, and, the relators not desiring to plead further, a peremptory writ is refused and the petition dismissed at cost of relators. Writ refused. Nichols, C. J., Johnson, Newman, Jones and Matthias, JJ., concur. Wanamaker, J., not participating.