State ex rel. Durr v. Spiegel
State ex rel. Durr v. Spiegel
Opinion of the Court
The difference of opinion between the parties, as to the duty of the budget commissioners in the premises, will be concluded by the answer to a single question: Do the words “heretofore” and “hereafter,” which occur- in Section 5649-2, General Code, as amended April 16, 1913, and approved May 6, 1913, refer to the date of the passage of the original section on May 31, 1911, or to the date when the amendment became effective, to-wit, August 8, 1913? It is conceded that it is necessary for the defendants to levy the sum of $196,074.47 for sinking-fund and interest purposes for bonds issued by the city of Cincinnati between the dates of June 2, 1911, and August 8, 1913, without a vote of the people. The original Section
“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, for the year 1911 and any year thereafter, including taxes levied under authority of Section 5649-1 of the General Code, and levies for state, county, township, municipal, school and all other purposes, shall not in any one year exceed in the aggregate the total amount of taxes that were levied upon the taxable property therein of such county, township, city, village, school district or other taxing district, for all purposes in the year 1910, provided, however, thát the maximum rate of taxes that may be levied for all purposes, upon the taxable property therein, 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.”
Experience demonstrated that it was not practicable to limit the political subdivisions named in that section in making up their levies for all purposes to the amount levied in the year 1910. Therefore, in 1913, the legislature passed the amendment referred to (103 O. L., 552). The amendment
It is apparent that the single intent of the legislature in passing the amendment was to eliminate the requirement that the amount of taxes levied in any year should not exceed the aggregate amount levied for all purposes in the year 1910. The amended section is in the exact words of the original section with the exception of the elimination stated. Both contain the provision that the levy shall not in any year exceed ten mills on each dollar of the tax valuation of the taxable property of the 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 be hereafter incurred by a vote of the people. Between June 2, 1911, the date when the original act was approved, and August 8, 1913, when the amendment became effective, the city is
In 1 Lewis’ Sutherland on Statutory Construction (2 ed.), Section 237, it is said: “The constitutional provision requiring amendments to be made by setting out the whole section as amended was not intended to make.any different rule as to the effect of such amendments. So far as the sec
In Section 238 of his work the same author says: “Where there is an express repeal of an existing statute, and a reenactment of it at the same time, or a repeal and a reenactment of a portion of it, the reenactment neutralizes the repeal so far as the old law is continued in force. It operates without interruption where reenactment takes effect at the same time.”
In McLaughlin v. Newark, 5 7 N. J. Law, 298, where a similar question was involved, the court say: “By observing the constitutional form of amending a section of a statute the legislature does not express an intention then to enact the whole section as amended, but only an intention then to enact the change which is indicated. Any other rule of construction would surely introduce unexpected results and work great inconvenience.”
In Parsons v. Wayne Circuit Judge, 37 Mich., 287, an amendment was adopted twenty-two years after the original statute was passed. The amendment provided that actions on judgments “heretofore rendered” should be barred in ten years after entry thereof. The court held that, in view of the fact that it would be absurd to confine this provision to judgments rendered before the passage of the original act, the legislature intended that the words “heretofore rendered” in the amendment should apply as of the date of the amendment.
Judge Cooley in rendering the opinion remarks: “It is further urged that, as a rule of construction, a statute amended is to be understood in the same sense exactly as if it had read from the beginning as it does as amended. This is true as a rule. * * * But such a rule of construction cannot be applied when the effect would be to defeat the manifest intent of the legislature in adopting the amendment. And such would be the effect in this case.”
Authorities as to the time of the taking effect of a statute and of an amendment thereto are of no assistance in this case. Nor is there occasion to invoke the elementary rule that where the language used by the legislature is plain and free from doubt there is no room for construction. The inquiry is not, 'What is the meaning of words employed ? nor When did the amendment take effect? but What
The presumption is that when the legislature adopts an amendment it intends to make some change in the statute amended, and when it reenacts the original statute as amended it has then made the only change it desired to make, leaving the rest of the provisions undisturbed.
The amendment should be considered in connection with the whole statute of which it has become a part. What is the whole scheme of the law? What object was intended to be accomplished by it and what imperfections were intended to be removed by the amendment? There is no uncertainty as to these matters in connection with the statute here involved.
Municipalities incurring obligations without a vote of the people, after the passage of the original act did so with full knowledge of the duty resting on them to provide for their payment within the limit explicitly declared in the law. By no stretch of construction can it be discovered that the amendment was intended to approve of a disregard of the restriction for the period between the date of the original act and that of the amendment. The demurrer to the answer will be sustained and the peremptory writ prayed for will be allowed.
Writ allowed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.