#### The State of Ohio, on relation of the City of Cincinnati, *v.*Joseph B. Humphreys, Auditor of Hamilton County.

Taxes levied by the city of Cincinnati, for payment of interest on Southern Railroad bonds issued by the city, are included in the aggregate of 16 mills on the dollar, to which cities of her class are limited by section 648 of the municipal code, as amended May 2, 1871 (vol. 68, p.- 136); and a levy by the city, in any one year, of an aggregate amount greater than 16 mills on the dollar, including such tax for interest, and excluding State, county, school, and school-house taxes, is unauthorized by law.

Application for writ of mandamus.

On the 20th of August, 1875, the common council of the «city of Cincinnati passed an ordinance levying a tax for *521municipal purposes, to be placed upon the duplicate for the year 1875, of sixteen mills on the dollar, and apportioning the same as follows:

“For redemption park bonds, .02 mill; for general city purposes, 4.40 mills; for support of police department, 2.05 mills; for interest on city debt, 3.80 mills; for superior court, .10 mill; for support of fire department, 1.50 mills; for lighting the city, 1.20 mills; for support of workhouse, .20 mill; for sanitary purposes, .25 mill; for park purposes, .20 mill; for repairing and cleaning sewers, — ; for street-cleaning department, .78 mill; for redemption of city debt, 1.00 mill; for hospital purposes, .45 mill; for infirmary purposes, .40 mill; for house of refuge purposes, .15 mill. Total, 16.00 mills.”

On the same day the council passed a separate ordinance, levying a tax of four mills on the dollar, “ to be placed on the duplicate for the year 1875, for interest on Southern Railway bonds.” These so-called “ Southern Railway bonds ” are bonds issued by the city under and by virtue of the act of May 4,1869, authorizing cities of a certain class to construct railways.

Both of these ordinances were duly certified to the defendant, then and still being the auditor of Hamilton county, on .the 26th of August, 1875, by the city clerk; but the auditor refuses to place upon his duplicate the taxes so levied, on the ground that they exceed in amount the aggregate of sixteen mills on the dollar, the maximum amount allowed by law to be levied for municipal purposes, but is willing to place upon the duplicate a levy of sixteen mills; and the city now seeks by mandamus to compel the auditor to place upon his duplicate the whole amount so levied by the two ordinances, making in the aggregate twenty mills on the dollar.

A. *O. Strong,*city solicitor, and *E. A. Ferguson,*for relator:

Does section 648 of the municipal code, as amended May 2,1871, fix the maximum of taxes at sixteen mills ?

*522It would seem that the plain interpretation of this section as a whole, is that the aggregate of all taxes levied by authority of the council, for the several departments of the-city government, exclusive of the department of schools, shall not, with the taxes levied for general purposes, exceed sixteen mills.

The taxes raised are to be distributed “ among the several departments, in such proportion to their needs as *said council shall deem necessary.”*Evidently the taxes spoken of are-those which may be levied or ordered at the discretion of council, and subject to its distribution. That this was the intentioxi of the legislature is shown by the exclusion of the-school tax, which, by subdivision 9 of section 641, must besueh a rate as may be prescribed by law, and by the power-given in subdivision 20 of section 644, to make a levy “ to-pay the interest on the public debt of the corporation, and to provide for a sinking fund for the same *a sum sufficient*to satisfy the same as it accrues annually, to be applied to-no other purpose.”

Any other construction would be inconsistent with section 642, which provides that the limitations for the specified purposes shall not be construed to prohibit the levy of a tax to raise means for the payment of the interest and principal of the debts of the cox’poi’ation, nor of any tax authorized by law for special pux’poses. It would also nulify chapter 48 of the muxxicipal code, which authorizes a tax to create a sinking fuxxd, “ in addition to the other-taxes ” of the coi’poration. See Peck’s Code, 227-230, 237. Effect must be given to every part of a statute. *State*v. *Blake,*2 Ohio St. 147-151; *Medical College*v. *Ziegler,*17 Ohio St. 52, 64; *Stone*v. *Elliott,*11 Ohio St. 252, 258 ; *Messenger*v. *Pressler,*13 Ohio St. 255.

A comparison of the fifth section of the act of April 80, 1862, “ prescribing the rates of taxation for state, county, township, city, and other purposes” (59 Ohio L. 72, 78),. as amended February 7, 1866 (63 Ohio L. 7), and May 14, 1868 (S. & S. 772), with chapter 41 of the municipal code,, will show that the limitation of section 648, as orig*523inally enacted, and as amended April, 1870, and May 2, 1871 (Peck’s Code, 229, and notes), should he construed to-apply only to levies for *village and city*purposes, and was not intended to include taxes for school and school-house purposes; nor for the payment of the principal and interest of the debt of the corporation; nor to prohibit special assessments on property for local improvement; nor any tax authorized by law for special purposes. See *Butz*v. *Mus*catine, 8 Wall. (U. S.) 575.

2. The taxes for the interest and principal of the bonded debt of the corporation are not, legally speaking, levied or ordered hy the corporation or council. When a loan is-provided by means of bonds, they become the commercial obligations of the corporation, and without express enactment the authority to borrow carries with it the power and duty to tax for the payment of the interest as it accrues, and for the principal when due. *White*v. *Railroad Co., 21*How. (U. S.) 575; *Vermilye*v. *Express Co.,*21 Wall. (U. S.) 138, 144; *Gelpcke*v. *Dubuque,*1 Wall. (U. S.) 176; *Mercer County*v. *Hacket,*1 Ib. 83; *Loan Association*v. *Topeka,*20 Wall. (U. S.) 655. What is implied in a statute is as much a part of it as what is expressed. *United State*v. *Babbit,*1 Black, 61; *Butz*v. *Muscatine,*8 Wall. (U. S.) 581.

In the case at bar the power and the duty are both expressed in the act of May 4, 1869 (66 Ohio L. 80), authorizing the levy for the Southern Railway, and in regard to-all bonds the municipal code and prior statutes are imperative as to the levies for payment of the principal and interest. If the council fails in its duty, the courts are authorized by the mandamus act of Eebruary 16, 1866, to levy the necessary tax. S. & S., 604. These taxes may therefore be said to be levied or ordered by the state.

If the city is limited to sixteen mills in its levy, then the levy for interest and sinking fund of the municipal debt must be taken out of the sixteen mills, and the residue applied to other city purposes. Hence it is immaterial whether the Southern Railway bonds were issued before or *524after the act of May 2, 1871, limiting the rates of taxation. 68 Ohio L. 133 ; Peck’s Code, 223-229.

*V. Worthington*and *Wm, Worthington,*for defendant:

1. A peremptory mandamus will not be issued on the relation of the city, until she shows, not only that she has powers of taxation, but that she has exercised those powers within the restrictions of form, time and substance, imposed by law.

She must also show the auditor is required by law to place all taxes levied by her on the duplicate. Eor without these, she shows no clear, legal right. Code of Practice, sec. 572, 2 S. & C. 1127; *State*v. *Yeatman,*22 Ohio St. 546; Constitution, art. 12, sec. 5, and art. 13, see. 6; *3.lays*v. *Cincinnati,*1 Ohio St. 268, 273 ; *Supervisors*v. *United States,*18 Wall. 71, 77.

The relatrix is not entitled to her writ if she has any other specific remedy at law. Has she such remedy ? Section 646 of the municipal code directs, if a levy of sixteen mills be not enough, she must apply to her electors for more money, at an election for that purpose. This, we think, is her remedy, and she is not entitled to a writ of mandamus to compel the auditor to put upon the tax duplicate a levy •she has no power to make without the sanction of her taxpayers.

2. That in relation to taxation is this: By the act of May .2,1871 (68 Ohio L. 133), the relatrix can levy a tax of sixteen mills for city purposes. This tax levy she can certify to the auditor to place upon the tax duplicate. By this act she can certify no other tax levy to him to be placed on this duplicate, and there is no other law under which she can certify a tax levy to the auditor, nor is there any other by which he is required to place upon the duplicate any other tax levy for interest on city bonds.

The act of May 4, 1869, authorizes a tax levy to *secure*the interest and sinking fund for the purposes specified therein. It gives no power _ to the relatrix to certify the ¡same to the auditor to place on his duplicate, nor to the *525treasurer to collect; and without a law, no such certificate can be made, nor can any such tax be placed upon the duplicate by the auditor, nor collected by the treasurer. The court can not supply these defects in this law. If the tax can be collected, it must constitute one of the components of the sixteen mills, authorized to be levied, certified to the auditor, placéd upon the duplicate and collected as other taxes are collected. Either of these points are sufficient to quash the writ of mandamus.

Welch, J.

We are unanimous in the opinion that the writ must be refused. It seems quite clear to us that the levy ordered by the city council is in violation of section 648 of the municipal code. That section, as amended May 2, 1871, in so far as it applies to this case, is as follows :

> “ See. 648. The aggregate of all taxes levied or ordered by any corporation, including the levy for general purposes, over and above the tax for county and state purposes, and excluding the tax for schools and school-house purposes, shall not exceed in any one year, in cities having a population of one hundred and fifty thousand inhabitants and more,, sixteen mills.”

The language of this section is unambiguous, and needs no interpretation. The section is complete within itself, and stands unaffected by any other provisions of the act. It plainly denies to cities of more than one hundred and fifty thousand inhabitants the power to levy taxes to an aggregate amount exceeding sixteen mills on the dollar, for purposes other than county, state, schools, and school-house purposes. In order to bring the tax in question, the tax for interest on the Southern Railway bonds, within this limitation, it is only necessary to show that it is a tax “ levied by” the “ corporation,” and that it is not a tax for county, state, schools, or school-house purposes. No one will contend that it is a tax for either of the last-named purposes, and it seems to us equally undeniable that it is a tax “ levied by ” the “ corporation.” Counsel for the city insist that it is to be regarded as a tax “ levied by the state,” *526and not by the corporation, because the law under which the bonds were issued makes it the duty of the city council to levy a tax annually for payment of interest on the bonds. The answer to this claim is, that the law under which the bonds were issued does not make the levy, but merely requires it to be made. This requisition is binding upon the city council, and can doubtless be enforced against the city by the holders of the bonds, but it can not be enforced against the auditor, in the absence of a levy by the city council. The law does not execute itself. It merely enjoins a duty upon the city council, and when that duty is performed by levying the tax, surely it becomes a tax levied by the corporation, within the meaning of section 648 of the code.

And it is no answer to this view of the case to say, that had the city council done its duty in the premises, by levying only sixteen instead of the twenty mills, and by apportioning the full necessary amount for payment of interest on its public debts, the whole of the retrenchment or deficit would thus be thrown upon the other departments or funds of the city, and render the amounts apportioned to them inadequate. If such be the case, it is matter for the consideration of the legislature, and not of the court.

The writ of mandamus is issuable only in cases where the defendant refuses to perform a duty specially enjoined by law. We know of no law making it the duty of the auditor to place upon his duplicate an assessment which, on its face, is contrary to law. On the contrary, we think he performs his duty by refusing to do so.

Other questions are raised and argued in the case, but in the view we have taken of it, their consideration becomes lunnecessary.

*Peremptory writ refused.*

McIlvaine, O. J., White, Rex, and Gilmore, JJ., conieurred.