
    ELECTIONS.
    [Lucas (6th) Circuit,
    October 5, 1907.]
    Wildman, Haynes and Parker, JJ.
    Henry Conrad v. David T. Davies, Jr., Aud.
    No Liability by County For Cost of Election Booths.
    A county is not liable for the cost of election booths constructed for use within a municipality located in that county.
    
      C. S. Northup and O. H. Masters, for plaintiff.
    
      L. W. Wachenheimer, Pros. Atty., and Ben. W. Johnson, Asst. Pros. Atty., for defendant.
   Wildman, j.

This is a proceeding brought under Sec. 5207 R. S. (Sec. 13472 Gr. C.) as to the submission of a controversy to a court without pleadings and upon an agreed statement of facts. The section reads:

“Parties to a question which might be the subject of a civil action may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action were brought; but it must appear by affidavit that the controversy is real, and the proceedings in good faith, to determine the rights of the parties; and the court shall, thereupon, hear and determine the case, and render judgment, as if an action were pending. ’ ’

The preliminary proceedings under this section have been followed and the court is satisfied that the submission is in good faith and by parties between whom a controversy has arisen which might be the subject of a civil action. The situation is, briefly, this: This plaintiff, Conrad, is a contractor who entered into an arrangement with board of deputy state supervisors and inspectors of elections for tbe city of Toledo, Lucas county, Ohio, to build certain election booths for an aggregate price, as shown by the agreed statement, of $7,245. He has so far carried out the arrangement as to have constructed booths amounting under the agreed price to $6,800, and has received his pay for a part of this amount — $3,000—leaving still his due $3,800. The board of supervisors and inspectors, on or about September 3d, 1907. approved this claim, finding that there was then due and payable to him upon the contract said sum of $3,800, and they directed the defendant, the county auditor, Davies, to issue an order upon the treasurer of said Lucas county to pay the sum out of the moneys of said county in his custody, under his control as such treasurer. The claim was then presented to the auditor with the demand that he issue his warrant upon the treasurer for the amount, and this the auditor refused and still refuses to do. The agreed statement shows that the city of Toledo, located in said county, at the last federal census, had a population of more than 11,800; which allegation is material as to certain sections of the statutes supposed to be applicable to the present claims. The plaintiff asserts and the defendant denies that by reason of the facts agreed upon, the plaintiff would be entitled in an action in mandamus, if one were in this court, properly commenced and prosecuted, to have a peremptory writ issued in his favor commanding the defendant to issue his warrant upon the treasurer as aforesaid. Both parties pray the court to hear and determine the case and render judgment as if an action in mandamus upon the relation of plaintiff as relator, against defendant as defendant, were heard and now pending upon said controversy.

The sections which have direct or indirect bearing upon the question submitted to the court here are Secs. 2966-27; 2926Í and 2926d R. S. (Secs. 4942, 4946, 5052 G. C.) There are some other sections which should be read in connection with these, perhaps, but they are so closely associated with them in the statutes that I will not stop to make more specific reference to them; nor do I care to make any detailed analysis of these three sections. We are disposed to adopt the view contended for by the assistant prosecuting attorney, representing the defendant, of Sec. 2966-27, enacted thirteen years ago, as being practically, by virtue of later legislation, although not specifically, repealed. It is, we think, repealed, or at least modified, by implication, by virtue of the repealing clause in 97 O. L. 243, applicable to acts and parts of acts inconsistent with this later legislation. The contention of the contractor, through his attorneys, is, that Lucas county is liable under thfe existing statutes for the costs of these election booths constructed for use within the city of Toledo. The language of the sections to which I have referred is somewhat ambiguous and difficult of construction. A literal and technical interpretation of their phraseology may justify the claims of the relator. We are not, however, disposed to adopt .such construction, or any construction which would result in throwing the burden of the costs of constructing election booths to be used entirely within the municipality of Toledo, upon the county of Lucas and requiring payment therefor from the county treasury while the expenses incident to the taking of the votes in township precincts or in the precincts in non-registration towns is borne entirely by the taxpayers outside of the city of Toledo; we think that the construction of the statutes contended for by the assistant prosecuting attorney, while it may not meet the technical phraseology of these sections, is such as must have been contemplated by the legislature in the enactments. The courts should not adopt a construction of the statutes which will be an unreasonable construction, and one which can not be presumed to have entered into the minds of the legislature in their enactment. And this view as to our duty in the rule of construction, is the governing principle with us in the present case. I might tarry to discuss the precise meaning of words and phrases used by the legislature in the sections to which I have made reference, but it would not be profitable and it suffices that it is the judgment of the court that the contention of the plaintiff here — Conrad—should not prevailthat the county of Lucas is- not liable for the cost, of these booths, and the writ prayed for is refused; and the petition dismissed. The costs will be upon the plaintiff.

Haynes and Parker, JJ., concur.  