
    The State, ex rel. Village of Manchester, v. Shriver et al., Board of Public Affairs of Village of Manchester.
    
      Municipal corporations — Sale of property not needed for municipal purposes — Sections S698 and 8699, General Code— Approval of board or officer having supervision and management — Power to withdraw approval and decline to execute contract.
    
    (No. 18977
    Decided June 2, 1925.)
    In Mandamus.
    This is an action in mandamus, which, in its amended form, is brought by the village of Manchester, Ohio, to require the members of the board of public affairs thereof to advertise for sealed bids for the sale of certain property belonging to the village, and to exercise their discretion in awarding the same to the highest and best bidder upon such sale. Issue was presented upon demurrer to the petition, and the question therefore is whether the facts stated in the petition are such as to warrant the issuance of a writ of mandamus as prayed.
    On August ‘27, 1924, the council of the village passed an ordinance authorizing the sale of certain real and personal property of the village then and theretofore constituting the electric power plant of the village, together with the distributive equipment thereof. This ordinance recited that by an ordinance enacted July 8, 1924, the village had “granted to the Adams County Power & Light Company, the right, privilege and franchise for a period of twenty-five (25) years of purchasing, owning, operating and maintaining the real estate and personal property to be used in the production of electrical energy and of constructing, erecting, maintaining and operating lights, poles, wires, cables and other necessary and convenient apparatus, fixtures and appliances in, upon and through the streets, avenues, alleys, lanes and public ways in the village of Manchester for the purpose of producing light, heat and power by means of electricity.” And also recited that the Adams County Power & Light Company has “accepted said franchise upon the terms and conditions set forth in said ordinance,” and then declared that “the real estate and personal property, consisting of land, buildings, engines, boilers, dynamos, machinery, switchboards, poles, wires, cables and other apparatus and appliances constituting the electric power plant and electrical distribution system are not needed for any municipal purpose,” and authorized and directed the board of public affairs to sell said real estate and personal property to the highest bidder upon the terms therein stated, which was “cash upon delivery of deed for said real estate and bill of sale for said personal property.” The board of public affairs and the mayor were thereby authorized and directed to convey said real estate and transfer the personal property to the highest bidder therefor.
    
      Mandamus, 26 Cyc., p. 442; Municipal Corporations, 28 Cyc., p. 622.
    
      It is averred that on August 27, 1924, the board of public affairs of said village, which board has the supervision and management of said real estate and personal property, duly approved said ordinance and proceeded to advertise for bids for the sale of said property. But under the terms of such advertisement certain conditions were required to be complied with. The boiler was to be repaired at once, and it was required that there should be steam in one of the boilers continually for five years; dhat the plant should be operated eight hours out of twenty-four for five years; also, that the village should have continuous light service, day and night, that would be satisfactory. And the purchaser was required to give a bond of $10,000 for the performance of such contract.
    It was asserted that the duties and obligations sought to be imposed upon. the purchaser of the property by said notice are not in accordance with, but contrary to, the terms and provisions of the ordinance, and prevented the sale of said property; that they make it impossible to sell the same; and that, though requested so to do, respondents refused to omit said obligations and restrictions from the advertisement for sale of said property.
    It is further averred that the board did receive three bids for the property, one for $21,000, another for $19,500, and one for $15,000, the latter being by the Adams Cbunty Power & Light Company, but that the board refused and rejected all of them; that pursuant to a second advertisement, which incorporated the same conditions and restrictions, the board received but one bid, that of $15,000 from the Adams County Power & Light Company, which was rejected; and the board then declared and notified the council of said village of its refusal to further carry out the sale of said property.
    It is averred that the amount of the bid of the Adams County Power & Light Company is a reasonable and proper amount for the property offered to be sold, and that the action and attitude assumed by the board of public affairs would prohibit and make impossible the carrying out of the terms of the ordinance, authorizing the sale of the real estate and personal property, and would prevent the sale thereof.
    
      Mr. Clarence F. Denning, for relator.
    
      Messrs. Blair S'Blair, for respondents.
   By the Court.

The question presented is whether the facts set out in the amended petition show that the members of the board of public affairs of the village of Manchester are refusing to perform a duty specially enjoined upon them by law.

The law governing and controlling such procedure, and defining the powers and authority of respondents with reference to the sale of such property, is set forth in Sections 3698 and 3699, General Code. The former authorizes municipal corporations to sell or lease real estate or personal property belonging to the corporation when not needed for any municipal purpose, and provides that “such power shall be exercised in the manner provided in this chapter.” The latter section provides as follows:

“No contract for the sale or lease of real estate shall be made unless authorized by an ordinance, approved by the votes of two-thirds of all members elected to the council, and by the board or officer having supervision or management of such real estate. When such contract is so authorized, it shall be made in writing by the board or officer having such supervision or management and only with the highest bidder, after advertisement once a week for five consecutive weeks in a newspaper of general circulation within the corporation. Such board or officer may reject any or all bids and readvertise until all such real estate is sold or leased.”

Before the municipal authorities are authorized, much less required, to sell any property belonging to a municipality, it must appear that such property is not needed for any municipal purpose. There is no such averment in the petition. An ordinance enacted by the village council, incorporated in the petition, recites the granting of a franchise to and acceptance thereof by the Adams County Power & Light Company, and it appears to have been declared by council in that ordinance that by reason thereof the property to be sold was not needed for any municipal purpose. If we assume that the recitals of the ordinance are a sufficient averment of the granting of the franchise and the acceptance thereof, still it does not appear by such recitals, or otherwise, that the Adams County Power & Light Company has complied with, or that it is able to comply with and carry out and fulfill, the conditions and requirements of such franchise ordinance, even if it would follow that by reason of those facts such property would no longer be needed for municipal purposes. The board of public affairs is the board having supervision and management of this property. Under the provisions of Section 3699, General Code, even though two-thirds of the members of the council pass an ordinance for the sale of such property, a contract therefor cannot be made without the approval of such board. "When it dearly appears in the pleading itself that the board, although having formerly approved the proposition, has subsequently disapproved it and refuses to go forward with the sale, the board is acting within the authority vested in it by the provisions of Section 3699, General Code.

Writ denied.

Marshall, C. J., Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.  