
    The State, ex rel. Grills, a Taxpayer, v. Board of Commissioners of Lorain County et al.
    (Decided November 2, 1931.)
    
      Mr. Wesley L. Grills and Mr. Milton Friedman, for plaintiff.
    
      Messrs. Baird & Vandemarlc and Mr. Don W. Myers, prosecuting attorney, for defendants.
   Allread, P. J.

This action was brought by a taxpayer to enjoin the unpaid portion of a fee for services of Wendell P. Brown. The history of the ease is as follows: On August 3, 1926, the county commissioners of Lorain county adopted a resolution to build a high level bridge in the city of Lorain. The appropriation for the expenses of the improvement was $2,199,000. To carry out the plan the county commissioners determined to submit the proposition to the voters of Lorain county. On November 2, 1926, an election was held, and of the ballots cast, 10,075 were favorable to the project and 8,097 ballots were unfavorable. January 10, 1927, the board of county commissioners adopted a resolution to proceed with the improvement. At the same time the board entered into a contract with Wendell P. Brown to perform services in relation to the improvement. The county commissioners in the acceptance of the bid, and in the contract with Wendell P. Brown, assumed that a bare majority of voters was sufficient to authorize the- improvement. On March 1, 1928, a suit was brought by. the state of Ohio, on the relation of Finegold, a taxpayer, against the board of county commissioners, and in this case the Court of Appeals held that an affirmative vote of 55 per cent, was required, and that the failure to obtain this vote was fatal to the improvement and the validity of the bonds issued therefor. A motion was filed in the Supreme Court to require the Court of Appeals to certify this record. This motion was overruled, and the judgment of the Court of Appeals therefore stood as the effective judgment. (State, ex rel. Finegold, v. Board of County Commissioners of Lorain Co., 29 Ohio App., 364, 163 N. E., 585).

During the period between the vote upon the improvement and the filing of the taxpayer’s action to enjoin the issuance of the bonds, the defendant "Wendell P. Brown performed certain services under his contract, and claimed, as compensation for the services so performed, the sum of $62,100, of which $35,700 has been paid, and he now claims the balance due, to wit, the sum of $26,400.

The evidence in the court below was in the form of an agreed statement of facts. This statement of facts is in the record and has been carefully examined by this court.

This case involves the validity of the contract between the commissioners and Wendell P. Brown as to the unpaid portion, to wit, the sum of $26,400. It is fortunate for Wendell P. Brown that the entire contract is not involved. The question is as to the validity of the contract so far as it relates at least to the unpaid portion. A contract with a public body like the board of commissioners involves two questions: First, as to the formal validity of the contract; and, second, as to its subject-matter. The questions have been presented by exhaustive arguments and briefs of counsel, all of which have been considered. The first question relates to the validity of the contract for the improvement. The county commissioners at the time they made the contract with Brown may have believed that the contract for the improvement was valid. The Court of Appeals afterwards declared the principal contract invalid and this would be effective to determine the law at the time the contract with Brown was made. The contract with Brown, although nominally as a deputy to the county engineer, was that of a special engineer to perform services with reference to the improvement involved in the special election. The contract is based upon that election and must stand or fall with reference to it. The able trial judge, we think, placed too much weight upon the fact that this contract was made by the board of commissioners with Brown as a deputy surveyor. If the contract involved only services with reference to this improvement Brown was bound to know whether the improvement was in fact valid; that is, whether the vote carried the necessary majority to validate the improvement. When the Court of Appeals held that the improvement was invalid, this was sufficient to destroy the contract of Brown, which was based upon the assumption that the improvement was valid, and that the vote was sufficient to authorize its construction. Even if the contract was nominally valid at the time made, its subject-matter was rendered invalid by the decision of the Court of Appeals, and, as a contract must not only be valid in form, but its subject-matter must also be legal and authorized, we are of opinion that the contract with Wendell P. Brown was not valid and was not authorized, and that this action to enjoin the payment of the unpaid portion thereof is well taken and should be sustained.

Another interesting question is presented, to wit, the validity of the contract in view of Sections 5660 and 5661 of the General Code, which provided for a certificate of funds. It is claimed that this statute did not apply by reason of Section 2413, General Code. This latter section provides that the requirement that a certificate that the money is in the treasury shall not apply to the appointment and employment of such persons as are employed by the board of county commissioners. Whether this section would apply in case the contract in this case were otherwise valid we need not determine. We have reached the conclusion that the contract of employment was invalid, at least as to the unpaid portion.

The claim is made on behalf of Wendell P. Brown that under Section 2343, G-eneral Code, wherein it is provided that in case of a public improvement the following among other items is required, “a full and accurate estimate of each item of expense, and the aggregate cost thereof, ’ ’ this section of the statute would apply in preliminary matters and until the contract itself has been executed. It may be'true, as claimed by counsel for Mr. Brown, that this statute would apply in case the improvement had been authorized by the vote. In the present case we find, however, that the improvement was not authorized by the affirmative vote of a sufficient number of voters. Under these circumstances, .we reach the conclusion that the contract of Wendell P. Brown, especially as to the unpaid portion thereof, is invalid, and that the payment thereof should be enjoined. The injunction will be allowed.

Injunction allowed.

Hornbeck and Kunkle, JJ., concur.  