Leo ROSSI et al., Plaintiff and Respondent, v. Thad BROWN, Tax Collector etc., Defendant and Appellant.
Respondents brought this action seeking a writ of mandate requiring appellant tax collector to collect a tax, the San Francisco utility tax on residential users. Respondents contended, and the superior court agreed, that the attempted repeal of this tax by an initiative measure, Proposition R on the November 1987 San Francisco ballot, was unlawful. In affirming, we will hold the initiative provisions of San Francisco's Charter may not be utilized to (1) repeal the future imposition of a legally imposed local tax, and (2) divest the present or future board of supervisors of the power to enact such tax legislation.
I. FACTS AND PROCEDURAL HISTORY
The relevant facts are not in dispute and were stipulated to by the parties. The City and County of San Francisco (City) derives its powers from a charter.1 For many years prior to 1982, the City had by ordinance imposed a utility users tax on persons or entities within the city. The tax consisted of a levy of at least 5 percent on the bills of electricity and gas users, water users, steam users, and telephone users. The revenues collected therefrom were placed in the City's general fund.
In 1982, the City's Board of Supervisors (Board) voted to exempt residential users from this tax for the calendar year 1983. It was also provided that, for each succeeding calendar year thereafter, the tax would be imposed on residential users, unless the Board voted to exempt residential users by September 15 of the previous year.
In 1985, the Board failed to vote to exempt residential users, so the tax was collected from them in 1986. In 1986, the Board did vote to exempt residential users from the tax for the coming year, but later reversed itself, reimposing the tax for the calendar year 1987 in light of the deteriorating financial conditions facing the City. This triggered a petition to repeal the tax on residential users; and on July 22, 1987, the registrar of voters received and certified an initiative petition seeking such a repeal. The initiative (Proposition R) added section 707.1 to article 10 of City's Revenue/Business Regulations, was passed at the November 1987 election, and provided as follows: “(a) No tax shall be levied upon the use in the [City] by residential customers of telephone communication services, electrical energy or gas, water or steam which is delivered through mains or pipes or of any other utility service after June 30, 1988. [¶] (b) For the purposes of this Section, ‘residential customer’ shall mean any customer paying for the utility service at a residential or domestic rate consistent with the rate schedule set by the California Public Utilities Commission or any other rate-making authority. [¶] (c) This Section was adopted by the voters of [City] at the November 3, 1987 election and may be amended only by the vote of the electorate.” The tax was levied on residential users for the calendar year 1988, since no exemption therefrom had been voted by the Board by September 15, 1987. The terms of Proposition R, however, proscribed the levy of the tax after June 30, 1988. Appellant, pursuant to those terms, stopped collecting such tax on that date and has not collected it since.
In April 1992, respondents filed this action for a writ of mandate to compel appellant to begin collecting the tax from residential users. Respondents urged the repeal of this tax by an initiative was illegal for the principal reason that it constituted a forbidden referendum on the collection of a local tax levy.
On June 26, 1992, a peremptory writ of mandate issued from the superior court granting the requested relief. Judgment was entered on July 1, 1992; and a notice of appeal was timely filed.
The trial court concluded the attempted repeal by initiative of the utility tax on residential users was invalid. The case law constrains us to agree.
A. A Local Tax Is Not Subject to Referendum Disguised As an Initiative
A local tax may not be repealed by a local initiative measure, since the power of the initiative does not extend to the conducting of what amounts to a referendum on a local tax previously imposed by a local legislative body. (Cal. Const., art. II, § 9, subd. (a).) “The referendum is the power of the electors to approve or reject statutes or parts of statutes except ․ statutes providing for tax levies or appropriations for usual current expenses of the State.” (Ibid., emphasis added.)
A long line of cases has reinforced the “settled rule[ ]” that a local legislative body's power of taxation may not be curtailed by either initiative or referendum. (Carlson v. Cory (1983) 139 Cal.App.3d 724, 731, 189 Cal.Rptr. 185.) As Justice Smith of this district concluded in Carlson, “neither the initiative nor the referendum may be used in a manner which interferes with a local legislative body's responsibility for fiscal management.” (Ibid.)
The provision of the California Constitution quoted with emphasis above, sometimes called the taxation exception, has repeatedly been interpreted by the courts as barring both a referendum and an initiative on locally-imposed tax levies. A chronological review of the case law illustrates its development in cases involving both general law and chartered cities. In Myers v. City Council of Pismo Beach (1966) 241 Cal.App.2d 237, 243–244, 50 Cal.Rptr. 402, the Second District invalidated an attempt to repeal a general law city local tax by initiative, stating two applicable rules: “(1) A proposed initiative ordinance cannot be used as an indirect or backhanded technique to invoke the referendum process against a tax ordinance of a general law city․ [¶] (2) Such a proposed initiative ordinance, even if approved by a vote of the electors, cannot be used as a means of tying the hands of the city council and depriving it of the right and duty to exercise its discretionary power in a taxation matter such as is here involved.”
Myers, supra, was followed by Division One of this district in Dare v. Lakeport City Council (1970) 12 Cal.App.3d 864, 867–868, 91 Cal.Rptr. 124. In Dare, Justice Elkington concluded that an initiative relating to local sewer taxation by a general law city was an invalid attempt to repeal by initiative the local city council's power to set those tax rates. “Although the foregoing authorities deal generally with referendum powers it is also the law that the initiative process does not lie with respect to statutes and ordinances ‘providing for tax levies.’ ” (Id. at p. 867, 91 Cal.Rptr. 124, emphasis in original.) “The authorities we have cited impel us to hold, and we do hold, that the initiative process is not available to amend that portion of a municipal ordinance which provides that the city council shall determine the manner of fixing [these] charges․” (Id. at p. 869, 91 Cal.Rptr. 124.)
In City of Atascadero v. Daly (1982) 135 Cal.App.3d 466, 470, 185 Cal.Rptr. 228, the Fifth District similarly relied upon Myers and Dare, supra, in invalidating an attempt by initiative to limit the power of a general law city council to pass tax measures, by requiring all revenue raising measures to be approved by the electorate: “An initiative is not available as a device to curtail the taxing power.”
B. City's Power to Levy Future Taxes for General Purposes Cannot Be Curbed Through Exercise of the Initiative Process Set Forth in Its Charter
The same legal principles, which we have discussed above, have generally also been applied to chartered cities.
In Campen v. Greiner (1971) 15 Cal.App.3d 836, 843, 93 Cal.Rptr. 525, Division Two of this district invalidated an initiative, analogous to the one in issue here, which sought to repeal a local utility tax imposed by the City Council of San Jose, a charter city, and which provided that no future utility tax could be proposed without a vote of the people: “[T]he [city's] charter powers may not be limited or impaired by an initiative ordinance repealing a tax levied for general purposes.”
Similarly, in Gibbs v. City of Napa (1976) 59 Cal.App.3d 148, 153, 130 Cal.Rptr. 382, Division One invalidated an initiative which sought to repeal the powers of a local redevelopment agency created by a charter city: “It is settled that an initiative ordinance may not be used to undo such an act which is beyond the reach of referendum proceedings.”
As discussed, post, the initiative in question here was invalid as a disguised referendum on a tax levy, or as an attempt to evade or amend the City's Charter.
C. Appellant Erroneously Relies on Carlson v. Cory
Appellant presents a number of imaginative arguments for the validity of the initiative, principally relying upon dicta in Carlson, supra, which upheld a statewide initiative measure repealing the state inheritance tax, not a local initiative. After reviewing the case law recited above, the Carlson court suggested that it was inapplicable to statewide initiatives, although it was the “settled rule[ ]” with respect to local tax initiatives: “In the context of local elections, these and other cases have stated the ‘rule’ that ‘[a] proposed initiative ordinance cannot be used as an indirect or backhanded technique to invoke the referendum process' where that process is not available. [Citations.] This ‘rule,’ however, has never been approved by our Supreme Court and, in almost all of the above-cited cases, was merely dictum. We read those cases, not for the proposition advanced by petitioners, but for the settled rule[ ] that neither the initiative nor the referendum may be used in a manner which interferes with a local legislative body's responsibility for fiscal management.” (139 Cal.App.3d at p. 731, 189 Cal.Rptr. 185, emphasis added, citing Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 143, 130 Cal.Rptr. 465, 550 P.2d 1001 [“Past decisions invalidating initiative or referendum measures to repeal local tax levies have indicated a policy of resolving any doubts in the scope of the initiative or referendum in a manner that avoids interference with a local legislative body's responsibilities for fiscal management.”].)
Appellant in the present case obviously relies upon the Carlson suggestion that the rule against local tax initiatives was largely (though not entirely) dictum, and had not yet been explicitly approved by the Supreme Court (which had merely denied review in cases so holding and implicitly endorsed the rule in Birkenfeld, supra ). However, this reliance is misplaced. Even under the Carlson rationale, a local initiative such as the one in issue here may not displace the local legislative body's control over taxation and other requirements for sound fiscal management.
Case law subsequent to Carlson also more directly undermines appellant's argument. In Community Health Assn. v. Board of Supervisors (1983) 146 Cal.App.3d 990, 993–997, 194 Cal.Rptr. 557, Division Four of this district again analyzed the case law cited by Carlson and found it binding; a local initiative could not impose limitations on the board of supervisors' power to set tax levies. In Fenton v. City of Delano (1984) 162 Cal.App.3d 400, 407, 208 Cal.Rptr. 486, the Fifth District distinguished and limited Carlson, supra, as supporting the proposition “ ‘that neither the initiative nor the referendum may be used in a manner which interferes with a local legislative body's responsibility for fiscal management’ ”; the Fenton court rejected an attempt to repeal a local utilities tax through referendum in a general law city. In City of Westminster v. County of Orange (1988) 204 Cal.App.3d 623, 628, 251 Cal.Rptr. 511, the Fourth District reached the same conclusion as to an initiative, while limiting and casting some doubt upon the rationale employed in Carlson: “Although use of the statewide initiative power has been upheld to repeal statewide taxes (Carlson v. Cory, supra, 139 Cal.App.3d 724, 189 Cal.Rptr. 185), a host of other decisions have determined that the initiative may not be used as a substitute for an impermissible referendum. [Citations.]”
The most recent decision on point is City of Woodlake v. Logan (1991) 230 Cal.App.3d 1058, 282 Cal.Rptr. 27, which also dealt with a local utility tax. The Fifth District similarly distinguished Carlson in City of Woodlake and, relying upon the other cases cited herein, concluded an initiative on such a local utility tax question was invalid: “In summary, the respondent's contentions [regarding the validity of such an initiative] must fail because referendum is a reservation of shared authority to legislate which cannot be expanded beyond constitutional restrictions and because initiative attempts to create a referendum process addressing tax levies or appropriations are constitutionally impermissible.” (Pp. 1068–1069, 282 Cal.Rptr. 27.) As the Fifth District observed, citing the cases discussed above, “The referendum process may not be used to attack or nullify a tax ordinance of a city or county under article II, sections 9 and 11. [Citations.] [¶] It is also not permissible to achieve a prohibited purpose by disguising as an initiative a referendum addressing exempted matters. [Citations.]” (Id. at p. 1063, 282 Cal.Rptr. 27.)
Appellant suggests that all the cases cited above are either wrong, distinguishable, or both. We are asked to return to first principles and reach another result at variance with all existing case law, by holding that the taxation exception to the power of referendum created by article II, section 9 of the California Constitution is limited by its terms to measures which are labelled as referenda; according to appellant, this limitation may be evaded by labelling a tax vote measure as an initiative, which is not subject to the same limitations. Appellant theorizes that, since the tax exception could have been made expressly applicable to measures labelled initiatives as well as referenda, but was not, no such limitation should be applicable.
This argument of appellant comes rather late in the game. It would require us to throw out the law of local tax initiatives as it has developed for at least the past generation. Furthermore, as the Fifth District held in City of Woodlake, supra, “ ‘The listing of exceptions [of matters not subject to referendum] in the Constitution amounts to a declaration of policy against subjecting legislation concerning the excepted matters to a vote of the people.’ ” (230 Cal.App.3d at p. 1067, 282 Cal.Rptr. 27, quoting our Supreme Court in Geiger v. Board of Supervisors (1957) 48 Cal.2d 832, 836, 313 P.2d 545.) It is impossible to rationalize appellant's argument with this principle stated by our Supreme Court. No reason appears why the people would wish to prevent popular votes to repeal tax levies if denominated referenda, but not if denominated initiatives. Of course, there are differences between the two procedures; a referendum, once properly qualified by petition, immediately suspends the targeted tax, whereas an initiative does not have such an immediate effect. “Nonetheless, the result is the same—approval or rejection by the voters of a legislative enactment which would otherwise become [or remain] law.” (City of Woodlake v. Logan, supra, 230 Cal.App.3d at pp. 1065–1066, 282 Cal.Rptr. 27.)
Appellant's attempts to distinguish or rationalize away all the existing case law fail to recognize the underlying principle which has animated the development of that case law—a principle derived from the California Constitution itself. Though at times rationalized upon other grounds as well, such as the need to protect localities from sudden loss of funds and consequent collapse of local civic institutions, the underlying rationale those cases apply is the decision of the people, embodied in the language of the California Constitution, that local measures repealing “statutes providing for tax levies” are an inappropriate subject of popular vote. (Cal. Const., art. II, § 9, subd. (a).) As the initiative in question here did just that, the trial court properly ruled it was invalid.
Appellant seeks, however, to further utilize Carlson by a second theory. It is first contended that the residential utilities tax, purportedly eliminated by Proposition R, constituted such an insignificant contribution to City's general fund that no interference “with a local legislative body's responsibility for fiscal management” (Carlson v. Cory, supra, 139 Cal.App.3d at p. 731, 189 Cal.Rptr. 185) thereby resulted, i.e., the initiative was valid because total or near total financial collapse of the City did not consequently occur.
The parties have stipulated that Proposition R terminated the residential utilities tax levied by the Board for the entire calendar year of 1988, as of June 30 of that year. This shut off, in midyear, a revenue source of City lawfully set.
In further support of its second theory of Carlson 's applicability, appellant argues that this revenue source, eliminated by action of the electorate in the November 1987 election, only became effective on July 1, 1988, the start of the City's fiscal year; and that City, thus, had sufficient time, between the election and the proposition's effective date, to plan and implement revenue sources to substitute for the residential utility tax or cuts in its general fund expenditures to compensate for such loss of income; thereby further establishing no initiative interference with the Board's fiscal management responsibilities.
We reject this argument. The implicit contention is that the electorate does not “interfere” with a local legislature's responsibility for fiscal management by attempting to terminate a tax earmarked for the general fund halfway through the calendar year for which it was imposed. This suggestion defies common sense.
Quite aside from the problems of proof implied by appellant's suggestion in this case, where the Board plainly concluded the utility tax on residential users was necessary—and quite aside from the City's present dire financial situation, which was stipulated to in relevant part by the parties below, we believe the lower court properly refused to arrogate to itself the essentially legislative function of determining or overseeing the financial health of the City, which is assigned by law, charter, and Constitution to the Board, not the courts or a popular vote. Likewise we reject appellant's suggestion that authorities, which might support the propriety of a local vote as to the imposition of new taxes, necessarily support the propriety of an attempt to repeal a measure providing for an existing tax previously set by the local legislative body. This district in numerous holdings has uniformly rejected similar suggestions. (See, e.g., Dare v. Lakeport City Council, supra, 12 Cal.App.3d at pp. 867–868, 91 Cal.Rptr. 124; Campen v. Greiner, supra, 15 Cal.App.3d at p. 843, 93 Cal.Rptr. 525; Community Health Assn. v. Board of Supervisors, supra, 146 Cal.App.3d at p. 996, 194 Cal.Rptr. 557.)
D. City's Charter Does Not Permit Initiative Measures Which Divest Present and Future Legislative Bodies of Their Power to Enact Local Tax Legislation Within Their Competence
In the face of seemingly contrary authority such as Campen v. Greiner, supra, 15 Cal.App.3d at page 843, 93 Cal.Rptr. 525, proscribing limitation of a city's charter powers by initiative ordinance, appellant nonetheless also claims the City's Charter permits what Campen forbids.
The Charter vests the authority in the Board before September 15 of each year to “levy a tax,” the estimated proceeds of which, with other total receipts and revenue, “will be sufficient to meet all appropriations made by the annual appropriation ordinance.” (Charter, § 6.208.)
Charter section 9.108 deals with the initiative power reserved to the people and provides: “The registered voters shall have power to propose by petition, and to adopt or to reject at the polls, any ordinance, act or other measure which is within the power conferred upon the board of supervisors to enact․” (Emphasis added.)
The same section also provides a specific exception for tax measures such as that in issue here: “Annual budget and appropriation ordinances, ․ [and] the ordinances levying taxes, ․ shall not be subject to referendum.” (Charter, § 9.108.) The Charter language, thus, mirrors the provisions of the California Constitution which we have quoted above, and couples a broad grant of authority to act by initiative or referendum with a specific prohibition on backhanded referenda repealing tax levies. The case authorities decided under the California Constitution which we have cited above, therefore, also apply by analogy to the Charter language, whose terms are in pari materia with the Constitution's provisions on initiatives and referenda. Under these authorities, the measure in question here is barred as a backhanded referendum on a tax levy. (Campen v. Greiner, supra, 15 Cal.App.3d at p. 843, 93 Cal.Rptr. 525.)
Appellant contends, however, that some of the case law compelling rejection of his first argument involved general law cities and not chartered cities such as San Francisco; and that the Supreme Court's decision in Hunt v. Mayor & Council of Riverside (1948) 31 Cal.2d 619, 191 P.2d 426, discussing the powers reserved to the electorate by a city charter, requires reversal in the case at bench. Hunt stated that “ ‘if the powers reserved [to the people] by the charter exceed those reserved in the constitution [applicable to general law cities] the effect of the charter would be to give to the people the additional powers there described ’ ” (31 Cal.2d at pp. 622–623, 191 P.2d 426, emphasis added); and that, in a chartered city, “as between the provisions of the Constitution and the provisions of a city charter, those which reserve the greater or more extensive referendum power in the people will govern” (id. at p. 623, 191 P.2d 426, emphasis added).2
The Supreme Court closed this decision with the following dictum (quoted in part in Carlson v. Cory, supra, 139 Cal.App.3d at p. 731, 189 Cal.Rptr. 185): “[W]e are of the view that the charter in its present form cannot reasonably be construed as contemplating that the council, in making up the annual city budget and in levying permissible taxes to assist in providing necessary city revenue, should be hampered by the uncertainty and delay of referendum proceedings. It may be observed, in this connection, however, that if the people actually wish to make current revenue taxes of any type or types subject to referendum the charter may be amended to that end, and further, it would seem that the sales tax levy may still be voted upon by the people under present initiative provisions of the charter.” (Hunt v. Mayor & Council of Riverside, supra, 31 Cal.2d at p. 629–630, 191 P.2d 426, emphasis added.) 3
Appellant seems to imply that the emphasized Hunt dictum, ante, concerning the probable availability of the initiative measure of the Riverside Charter, validates the use of the initiative provisions of the Charter in this case. In sum, we are urged to look no further than the provisions of the Charter to uphold the electorate's power to repeal the residential utility tax by Proposition R. By this syllogistic logic, under Charter section 9.108,4 the people may enact any ordinance that the Board can enact. The Board can enact legislation authorizing or restricting the imposition of a residential utility tax (Charter, § 6.208); therefore, the voters may similarly authorize or restrict imposition of the same. Appellant's argument understates the effect of Proposition R, and errs in its assumption that the Board has the legislative power to restrict future boards from imposing a residential utility tax as a means of raising municipal revenue. “ ‘It is a familiar principle of law that no legislative body, by normal legislative enactment, may divest itself or future boards of the power to enact legislation within its competence. [Citations.]’ ” (City and County of San Francisco v. Patterson (1988) 202 Cal.App.3d 95, 105, 248 Cal.Rptr. 290.)
Proposition R purports to impermissibly divest the Board of the power to enact a residential utility tax at any time and vests that power exclusively in the electorate, a taxing process which the Board could not legislate to bind future boards.
Curiously, appellant here nonetheless seeks to sustain Proposition R by invoking Patterson, supra. There City argued, and this court (Division One) agreed, that Charter section 9.114 did not expand the initiative provisions of section 9.108 so as to validate the initiative measure Patterson rejected.5
Charter section 9.114 addresses “Competing and Conflicting Measures,” and the rules by which the prevailing one is determined. The language appellant relies on is this: “No initiative, ordinance or measure or declaration of policy approved by the electorate under the provision [sic ] of this charter shall be subject to veto, or be amended or repealed except by vote of the electorate, unless such ordinance or measure shall otherwise provide.” (Ibid.) Asserting the applicability of section 9.114 to all local initiative measures, City argues Proposition R does not require that any future taxes on residential use of utilities be put to a public vote, but merely provides that the repeal of the tax Proposition R effected may only be amended (or be itself repealed) by a vote of the electorate. City thereby asserts a purported distinction without a difference.
As City itself established in Patterson, supra, section 9.114 does not, as City here contends, expand the scope of the initiative power defined in its Charter. (202 Cal.App.3d at p. 104, 248 Cal.Rptr. 290.) It “simply limits the power of the board to amend or repeal an initiative ordinance that the voters are authorized to enact pursuant to section 9.108.” (Ibid., emphasis added.)
Proposition R, however, is simply an unauthorized initiative ordinance which impermissibly violates City's Charter. It does so because it enacts legislation beyond the power of the Board in binding future boards and, hence, is beyond the power reserved to the electorate under the Charter. Section (c) of Proposition R purports to prevent succeeding boards from ever again imposing a utility tax, except upon a prior favorable vote of the electorate.
The plain fact is that under Proposition R no residential utility tax may be imposed by the sole action of a future board, a legislative action clearly authorized by the Charter, yet purportedly barred by Proposition R. That authorized legislative power can only be restored to future boards if the electorate “amend[s]” or “repeal[s]” Proposition R, thereby clearly frustrating and denying the unfettered charter power of future boards to raise revenue by a residential utility tax.
As this district has held, such a measure is invalid because even the Board cannot so limit the power of succeeding legislative bodies: “This is an attempt to limit or restrict the legislative powers of the [city] council and hence, if enacted, would be invalid. [Citations.] The council by ordinance could not tie its own hands as to the future, and the initiative carries no greater legislative power than that possessed by the legislative body itself. [Citations.] [¶] This provision alone renders invalid the proposition ․ submitted to the voters. Its provisions are not severable. [Citations.]” (Campen v. Greiner, supra, 15 Cal.App.3d at pp. 843–844, 93 Cal.Rptr. 525, emphasis added; accord, Community Health Assn. v. Board of Supervisors, supra, 146 Cal.App.3d at p. 996, 194 Cal.Rptr. 557; Citizens for Responsible Behavior v. Superior Court (1991) 1 Cal.App.4th 1013, 1034, 2 Cal.Rptr.2d 648.)
Justice Racanelli's opinion in Patterson, supra, is clearly applicable here. “As previously discussed, [Charter] section 9.108 defines the scope of the initiative power of the electorate congruent with that conferred upon the board of supervisors. As a corollary, the electorate has no greater power to legislate than the board itself possesses․ [¶] ․ [¶] The charter grants the [Board] the power to [levy taxes by ordinance].[6 ] Neither the electorate nor the [Board] can attempt to legislatively alter these provisions so as to bind a future board except [emphasis in original] by an appropriate charter amendment. In point of fact [emphasis added], ․ the initiative is an indirect attempt to accomplish what can only be done directly by amendment of the charter.” (Id., 202 Cal.App.3d at pp. 104–105, 248 Cal.Rptr. 290.)
The record conclusively establishes the pressing multimillion dollar financial need of City. Its Charter does not permit dilution by initiative of the legislative powers of its Board to raise necessary future revenue by taxation to meet that need.
The judgment is affirmed.
1. Other cities of California are commonly referred to as general law cities, deriving their powers from the law of the state applicable generally to cities not governed by charters granted by the Legislature. The original San Francisco Charter (Charter) was granted by the Legislature in 1850 (Stats.1850, ch. 98, p. 223.), but numerous charters and amendments have been enacted since that time. The present version of the Charter dates from a 1971 recodification, with subsequent modifications. (See Charter, § 11.104.)
2. Hunt held that a sales tax ordinance adopted by the City Council of Riverside was not subject to referendum under either the provisions of the California Constitution, or of the Charter of the City of Riverside.
3. Hunt does not cite the language of the then “present initiative provisions” of the Riverside Charter.
4. Charter section 9.108 provides, in pertinent part, that registered voters shall have the power to propose by petition, and to adopt or reject at the polls, any ordinance, act, or other measure which is within the power conferred upon the Board to enact.
5. Patterson involved an initiative measure (Proposition D) which, inter alia, sought to restrict future charter-based authority of the Board to sell or lease city property.
6. Section 6.208 of the Charter provides: “On or before the 15th day of September of each year, the [Board] by ordinance shall levy a tax ․ sufficient to meet all appropriations made by the annual appropriation ordinance.” (Emphasis added.)
PETERSON, Presiding Justice.
KING and HANING, JJ., concur.