
    (Eighth Circuit — Cuyahoga Co O., Cir’t Court
    Jan. Term, 1899. )
    Before Caldwell, Hale and Marvin, JJ.
    STATE OF OHIO ex rel. FANNING v. COUNTY COMMISSIONERS.
    
      Pudney Road Law unconstitutional—
    
    (l.J The fudney Road Law, so called, Rev. Stat. secs. 4670-4670-2 is unconstitutional.
    
      Motion to dissolve injunction — when not granted—
    
    (2.) A motion to dissolve a temporary injunction will not be-granted, in an action for a permament injunction, where it. will be necessary on the final disposiiton of the case to determine important questions arising from the issue of the-case, and on which depends the right to the injunction.
    (For a former decision in this case on another question, see-19 O. C. C,, 627.)
   Hale, J.

This case was submitted on a motion to dissolve an injunction. The situation is this: -The action was commenced to enjoin the county auditor from drawing and the county treasurer from paying a warrant to Miller, as was claimed by nim on the-contract for the improvement of Breclcsville Road, so called. The case is not submitted for final determination, and, therefore, we only consider it so far as to determine whether the-injunction should remain in force until the case is decided.

It becomes necessary on the final disposition of the case to-determine several important questions arising out of the issues in the case.

First. The issue is made that the statute under which this-improvement was had (the Pudney Road Law, so called, section 4670-1 to 4670-2 Revised Statute), is unconstitutional and void. There oan be but little question that this claim is well founded, the statute is clearly unconstitutional. What its effect is upon this contract we do not now discuss,leaving that for the final hearing.

Second. The Revised Statutes, section 2834b, forbids the making of a contract of this kind by the county commissioners-unless the county auditor first certify that the money required for the payment of the obligation incurred is in the treasury to the credit of the fund from which paymenfis to be made, or that a tax has been levied and is upon the duplioate for collection. It is conceded that this certificate was not filed, and precisely what effect that shall have upon this contract we. will not now discuss.

Third. Parties differ as to the proper construction made under which the classification of the work done under this contract was performed, and differ as to whether a correct classification was made. Whether a correct classification was made under the proper construction of this contract can only be determined from the testimony that may be produced on the final hearing.

If it be true that an erroneous construction was given by the engineer, and the classification made upon an erroneous basis,. then we think that a court of equity haB jurisdiction to correct the error in this kind of a proceeding.

T. H. Kaiser, County Solicitor, for Defendant.

It is claimed that the nature of the work was such that it would have been better to advertise for proposals and let to the lowest bidder.

Now it is claimed that the work should have beet) let as a whole without this classification and specification,so much for this kind of work and so much for that, leaving a chance for the increase or deorease of either.

These questions are all of sufficient importance to await the final disposition of this case. Some of them depend upon the testimony that may be given on the final hearing, and we have •concluded, without going into a discussion of the case, that the injunction, by reason of the claims made,and the probabilities of the outcome of the casa, that this injunction should remain until the final hearing,and the motion to dissolve will be ovrruled.  