
    Henderson, Clerk of Council, et al. v. The City of Cincinnati, by Ballard, City Solicitor.
    
      Park commissioners — Mandatory duties — Act of May p, 1908 — Bond issues of municipalities — Not affected by Section 6 of act.
    
    1. The provision of Section 3 of the act of May 9, 1908, relating to the duties of park commissioners (99 O. L., 440), that “all questions acted upon shall be decided by yea and nay vote entered on the journal” is mandatory.
    2. Section 6 of the act does not, either expressly or by implication, amend former legislation restricting the bond issues of municipalities.
    (No. 11935
    Decided October 19, 1909.)
    Error to the Circuit Court of' Hamilton county.
    The city solicitor brought suit in the court • of common pleas against the plaintiffs in error, the clerk of the city, the auditor of the city and its board of park commissioners, to enjoin the publication of an ordinance providing for the issuance of bonds of the city and also to enjoin the issuance of the bonds, because of a want of compliance with the statute in the steps taken to authorize the issuance of the bonds. The allegations of the petition, in substance, were that on the 30th of December, 1908, the board of park commissioners passed a resolution declaring it necessary to issue bonds in the sum of one hundred and twenty-five thousand dollars for the purpose of carrying into effect the powers conferred upon the board by law, and on the same day the board transmitted said resolution to the city council. On the 25th of February, 1909, the commission instructed its secretary to have prepared, and submitted to council for action, an ordinance authorizing an additional bond issue of fifteen thousand dollars to defray the costs of erecting a public shelter and comfort station in Eden Park, and equipping the same. On the 19th of March, 1909, the board of park commissioners transmitted to council a communication in which they requested that council submit to a vote of the people, at a special election to be held for that purpose, the question of issuing one million dollars in bonds for the use of the board of park commissioners. On March 22, 1909, the finance committee of the council requested the board to state with particularity the purpose for which said bonds were desired, and on the 25th of March, 1909, the park commissioners sent to said' committee a communication complying in general terms with said request. On the 29th of March, 1909, the council of the city of Cincinnati passed a resolution declaring it necessary to issue bonds in the sum of one million dollars to raise money for purchasing and condemning the necessary land for park and boulevard purposes and for improving the same. In said resolution it was recited that said issue, together with other indebtedness incurred by the city, would exceed four per cent, of the total value* of all property in the said city as listed and assessed for taxation, and, therefore, they provided for an election to be held on the 11th day of May, 1909, at which the qualified electors of said city should vote upon the authorization of said issue. The petition alleges that, in fact, said contemplated issue would, in connection with other indebtedness of the city, exceed four per cent, of all the property in the city of Cincinnati as listed and assessed for taxation, but would not cause said indebtedness to exceed eight per cent. Said election was held pursuant to the resolution of the council, and at said election a majority of those voting voted in favor of authorizing the issue of the bonds, but the proposition did not receive the votes of two-thirds of the electors voting at said election. The petition further alleges, that upon the assumption that a favoring vote of a mere majority was sufficient to authorize an issuance of the bonds, the original defendants were about to proceed to issue the bonds.
    A demurrer to this petition was filed in the court of common pleas. The demurrer was overruled, and the defendants not desiring to plead further, a perpetual injunction was granted in accordance with the prayer of the petition. This judgment of the court of common pleas was, on petition in error, affirmed by the circuit court.
    
      Mr. Edwin E. Stevens and Mr. Prescott Smith, for plaintiffs in error.
    
      Mr. Edward M. Ballard, city solicitor, for defendant in error.
    The case was argued orally for the defendant in error by Mr. Albert H. Morrill.
    
   Shauck, J.

Two propositions are urged in support of the conclusion that the issuance of the bonds was not authorized in view of the facts alleged in the petition. The first is, that the board of park commissioners did not take action favoring the issuance of said bonds in the manner prescribed by the act of May 9, 1908, providing for the establishment of park commissioners and defining the powers and duties of such boards when established. Section 3 of the act cited leaves no room whatever for contention upon this point. The third section of the act provides in terms that “all questions acted upon shall be decided by yea and nay vote with the name of each member voting recorded on the journal; and no question shall be decided unless approved by a majority of the board.” The petition shows that this mandatory provision of the statute was not complied with by the board of park commissioners.

It is further urged that at all events, the power of the municipality to make the bond issue contemplated, is restricted by Sections 2835-2837, Revised Statutes. Counsel agree that if the case is to be determined by the provisions of these sections,. a majority of the popular vote of less than two-thirds would not authorize the issue, since it would exceed four per cent, of the total value of all property in the municipal corporation as listed and assessed for taxation. Upon that proposition the provisions of the statute leave no doubt whatever. But on behalf of the plaintiffs in error, it is urged that the city of Cincinnati, having provided in the .manner pointed out by statute for a park commission, and that commission favoring the issue of the bonds, takes the case out of the statutory provisions above referred to, and provides for the issue of bonds by another mode, that provided in the statute authorizing the creation of the park commission. It is true that in the cases to which it applies, Section 6 of the park. commission act, 99 Ohio Laws, page 442, does provide that when a majority of the electors of the city, either at a special or general election, shall vote to authorize the issuance of bonds, it shall be the duty of the council of the city to enact all legislation necessary to carry into effect their expressed will. The later act contains no provision whatever expressly amending or modifying the provisions of Section 2835 and following. It is pertinent, therefore, to bear in mind that amendments by implication occur only when it results from the necessity of giving effect to the later legislation. Section 6 of the park commission act contains no suggestion that it was intended to authorize, either the city council, or the park commission, or both acting together, to issue bonds in excess of four per cent, of the taxable' value of the property of the city without authorization by two-thirds of the voters of the city. That section obviously was not intended to modify the' preceding legislation in this regard in any respect. Its object was to provide for the contingency of a difference of views between the park commission and the municipal council respecting the proposed issue of bonds for park purposes within' the limit of four per cent, of the taxable value of the property of the city. In other words, the favoring vote of a bare majority, as contemplated in the later legislation, was not intended as a substitute for the two-thirds vote required by the previous legislation, but was only to be substituted for the favorable action of the city council, when it refuses to act favorably upon the recommendation of the park commission.

Upon both grounds it seems entirely clear that the injunction was properly granted

Judgment affirmed. ,

Crew, C. J., Summers, Spear, Dávis and Price, JJ., concur.  