Lucas County Bd. of Com'rs v. City of Toledo, 71-352

• Decision Date: 29 December 1971
• Docket Number: No. 71-352,71-352
• Citation: 277 N.E.2d 193,28 Ohio St.2d 214,57 O.O.2d 440
• Parties: , 57 O.O.2d 440 LUCAS COUNTY BOARD OF COMMISSIONERS, Appellant, v. CITY OF TOLEDO, Appellee.
• Court: Ohio Supreme Court

Page 214

28 Ohio St.2d 214

277 N.E.2d 193, 57 O.O.2d 440

LUCAS COUNTY BOARD OF COMMISSIONERS, Appellant, v. CITY OF TOLEDO, Appellee.

No. 71-352.

Supreme Court of Ohio.

Dec. 29, 1971.

Cruey, Kelb, Duffey & Hewes, and George R. Hewes, Toledo, for appellant.

Louis R. Young, Director of Law, and John O. Celusta, Toledo, for appellee.

PER CURIAM.

The question presented by this case is whether RC. 5739.23(H) was, in effect, repealed by the enactment of R.C. 5739.23(I).

R.C. 5739.23(H) provides that:

'The relative need of each subdivision shall be multiplied by the relative need factor to determine the proportionate share of the subdivision in the undivided local government fund of the county, provided that the maximum proportionate share of a county shall not exceed the following maximum percentages of the total estimate of the undividual local government fund governed by the relationship of the percentage of the population of the county that resides within municipal corporations within the county to the total population of the county as reported in the reports on population in Ohio by the Department of Development as of the twentieth day of July of the year in which the tax budget is filed with the budget commission:

                "Percentage of municipal     Percentage share of the
                 population within the        county shall not exceed
                 county
                    Less than
                    Forty-one per cent           Sixty per cent
                    Forty-one per cent or
                    more but less than
                    Eighty-one per cent          Fifty per cent
                    Eighty-one per cent
                    or more                      Thirty per cent
                

'Provided, that where the proportionate share of the county exceeds the limitations established in this division, the budget commission shall adjust the proportionate shares determined pursuant to this division so that the proportionate share of the county does not exceed these limitations, and shall increase the proportionate shares of all other subdivisions on a pro rata basis. In counties having a population of less than one hundred thousand, not less than ten per cent shall be distributed to the townships therein.'

R.C. 5739.23(I) provides that:

'The proportionate share of each subdivision in the undivided local government fund determined pursuant to division (H) of this section for any calendar year shall not be less than the product of the average of the percentages of the undivided local government fund of the county as apportioned to that subdivision for the calendar years 1968, 1969, and 1970, inclusive, multiplied by the total amount of the undivided local government fund of the county apportioned pursuant to section 5739.23 of the Revised Code for the calendar year 1970. For the purposes of this division, the total apportioned amount for the calendar year 1970 shall be the amount actually allocated to the county in 1970 from the state collected intangible tax as levied by section 5707.03 of the Revised Code and distributed pursuant to section 5725.24 of the Revised Code, plus the amount to be received by the county in the calendar year 1970 pursuant to division (B)(1) of section 5739.21 of the Revised Code, and distributed pursuant to section 5739.22 of the Revised Code. If the total amount of the undivided local government fund for any calendar year is less than the amount of the undivided local government fund apportioned pursuant to section 5739.23 of the Revised Code for the calendar year 1970, the minimum amount guaranteed to each subdivision for that calendar year pursuant to this division shall be reduced on a pro rata basis proportionate to the amount by which the amount of the undivided local government fund for that calendar year is less than the amount of the undivided local government fund apportioned for the calendar year 1970.'

In essence, division (I) provides a floor and division (H) a ceiling for possible subdivision receipts from the distribution of the undivided local government fund. From the wording of the two sections, however, there is no doubt that a situation could arise wherein it appears that a county would be entitled to more under (I) than (H) allows. Such a situation is presented by this case. If (H) is to remain intact, the amounts allocated under the formula in (I) could not exceed the percentage provided by the formula expressed in (H).

Appellant argues that if (I) is given its proper effect, it repeals (H) by implication. We cannot agree. As we have said many times, repeals by implication are not favored and will not be found unless the provisions of the purported repealing act are so totally inconsistent and irreconcilable with...