
    Common Pleas' Court of Montgomery County.
    State, ex Rel., v. Bergman, Clerk.
    Decided July 2, 1930.
    
      Wm. M. Mattheivs solicitor, attorney for relator.
    
      Canny & Jeffrey, attorney for defendant.
   Snediker, J.

This case is before the court on a general demurrer to the answer of the defendant on the ground that on its face it is insufficient in law. The petition in this case recites that under favor of Section 3615-1 of the General Code of Ohio, by proper resolutions and ordinances the council of the village of Oakwood has authorized and there has been entered into a contract with the city of Dayton for a joint public improvement eliminating certain railway grade crossings in the city of Dayton. Pursuant thereto, by action of its council, the relator ordered the defendant to advertise bonds for sale to pay its proportion of the expense as agreed to for carrying but such improvement. This the defendant has refused to do, and the relator prays that a' writ of mandamus issue commanding him to advertise said bonds under the Uniform Bond Act of the state of Ohio. For answer, the defendant admits all of the facts in the petition contained as to the passage of such resolutions, ordinances, and the making of said contract, and says that these grade crossings are outside of the corporate boundaries of the village of Oakwood, and are entirely within the corporate boundaries of the city of Dayton. The defendant further alleges that “some of the crossings to be eliminated are on East Third street, South Wayne avenue, Wyandotte street, East Fifth street, Stone street, South Jefferson street, South Main street, South Ludlow street, and Souht Perry street; that these streets in the city of Dayton lead to or into the village of Oak-wood, or lead into other streets which in turn lead into the village of Oakwood; that the crossings are approximately a mile and a half to two miles from the corporate line of the village; that as a result thereof the village and its inhabitants will receive no benefit from said improvement and from the elimination of these grade crossings, except in common with all other inhabitants of Montgomery county, Ohio, in the vicinity of Dayton, who have occasion to travel into and through said city, and that therefore the action of the electors of the village in authorizing the issuance of bonds to pay the cost to be contributed by the village, and the action of the council of the village in issuing bonds pursuant to such authority, are null and void; and that the ordinance passed April 15, 1929, which provided for the issuance of bonds in the sum of $30,000 on the part of the village of Oakwood for the purpose of providing money for the payment of a part of the portion of the cost of the elimination of railroad crossings in the city of Dayton, Ohio, to be paid by the village, is therefore null and void; and that the ordinance of April 7, 1930, which related to the payment of the portion of the village of the cost of' elimination of grade crossings in the city of Dayton at South Bainbridge, South McDonald, South Montgomery, South Commercial, and South Clinton streets, which are located from 2 to 2% miles from the corporate limits of the village of Oakwood, and which streets do not lead into the said village, but are laterals leading .to thoroughfares which in turn lead into the village, is null and void, for the reason that said improvement is of no benefit to the village of Oakwood or the inhabitants thereof, except in common with other persons in Montgomery county, Ohio, and in the vicinity of Dayton who have occasion to travel through or into the city.” The city and the village are contiguous.

In general, it is claimed by the defendant that the ordinances passed by the village of Oakwood for the purpose of participating in such improvement and paying its proportionate share of the cost thereof, and the contract entered into with the city of Dayton by the village, are null and void. These resolutions, ordinances and contract were passed and entered into under authority of Section 3615-1 of the General Code, which became effective July 29, 1925, and which reads as follows:

“Two or more municipalities may enter into an agreement for the joint construction or management, or construction and management, of any public work, utility or improvement benefiting each municipality, or for the joint exercise, of any power conferred on municipalities by the constitution or laws of Ohio, in which each of such municipalities is interested. Any such agreement shall be approved by ordinance passed by the legislative body of each municipality party thereto, which ordinance shall set forth the agreement in full, and when so approved shall be a binding contract upon such municipalities, etc. * * * Each such municipality may issue bonds for its portion of the cost of any such public work, utility or improvement where the provisions of general law would authorize the issuance of such bonds in the event such municipality alone were undertaking the construction of such public work, utility, or improvement, and subject to the same conditions and restrictions which would then apply to such municipality.”

Heretofore, on June 7, 1929, there was before this court, in the case of Nels H. Nelson v. Village of Oakwood and others, the question of whether or not the improvement contemplated was such as the general law would authorize the issuance of bonds for in the event the village of Oak-wood was alone undertaking the construction of the improvement, and we found:

“In the ‘general law’ an enactment providing that a municipality may alone undertake the construction of the raising and lowering of the grade of its streets in connection with the elevation of the tracks of a railroad company, and that such improvement may be either within or without the corporate limits;” that
“It only needed Section 3615-1 to amplify the power conferred by Section 8874 so as to authorize two municipalities to enter into an agreement for a joint construction and management of such work,” and that
“So long as either or both of them are acting within the powers conferred by Sections 8874 et seq., and within the scope of the provisions of Section 8890 to the benefit of each, or are jointly exercising a power conferred on municipalities by the constitution or laws of Ohio in which each is interested, they do not exceed the powers conferred by Section 3615-1.”

It is contended by counsel for the relator that the determination by the council of the village that it will be benefited by these grade crossings is conclusive; that such determination is a legislative question, and that the passage of the ordinances set out in the petition is evidence that the council of the village of Oakwood has determined that the village will be so benefited, and that the question of such benefit is not subject to a review by the courts in the absence of fraud or bad faith on the part of the council in so determining.

Counsel for the defendant take the position that the answer recites a good defense, in that it states generally that no benefit will accrue to the village of Óakwood, and in support of that contention, make recitation of the location of the streets where the grade crossings are to be eliminated, and that they are so located that their use by the village and its citizens will be no greater than that of other residents of the county outside of the city of Dayton using such streets. These facts, they claim, show in and of themselves an abuse of discretion on the part of the municipal authorities of the village of Oakwood in passing such resolutions and ordinances and in entering into said contract.

The defendant is bound by the specific allegations as to the locations of the streets where there is to be an elimination of grade crossings. His conclusion that they will not be of benefit to the village of Oakwood is not proof against demurrer.

Cooley, in his work on Municipal Corporations, says:

“Where the council is vested with power to order and make the improvement, either upon petition or notice, and these formal requirements have been complied with, the power of the council is discretionary and quasi judicial, and its decision is conclusive, in the absence of mistake or fraud. The discretion exercised by the city council in regard to the expediency and method of making improvements is not the subject of judicial review, except when an abuse of such discretion clearly appears, and the courts will not interfere to prevént the improvement merely because of alleged inutility or prodigality.”

(Supported by authorities from many states.)

In the 202 Ills., at p. 531, it was decided that:

“The courts have no power to interfere to prevent the construction of a local improvement upon the ground that it is not necessary and that its construction is an unreasonable- burden upon the property sought to be assessed, unless the discretion vested in the city council has been abused to such an extent as to render the ordinance providing for the improvement so unreasonable that it may be declared void.”

The determination-of whether or not the elimination of the grade crossings at the several streets referred to- in the answer would be beneficial to the village, involves the exercise of discretion on the part of the council of the village of Oakwood. Incidental benefit to others not residents of the village need not enter into their deliberations. Discretion as long ago defined by Coke is:

“To discern by the right line of law and not by the crooked cord of private opinion, which the vulgar call discretion.”

In 18th Johns, at p. 99, the Supreme Court of New York say:

“It means, when applied to public functionaries, a power or right conferred upon them by law of acting officially in certain circumstances according to the dictates of their own judgments and conscience, uncontrolled by the judgment or conscience of others.”

'In the 28th Colorado Reports, at page 379, Justice Gabbert gives this definition:

“Such discretion, as applied to public functionaries, means the power or right of acting officially according to what appears just and proper under the circumstances.”

In the 13th North Dakota Reports, at p. 247, Justice Young says:

“What, then, is the discretionary power which is given to the county commissioners ? It is clear that it is nothing more than administrative discretion, in the language of the act, ‘to cause the proceedings’ therein provided for to be instituted and concluded.”

Freund on Police Powers, at Section 654, quoting an early law writer, says;

“Where anything is left to any person to be done according to his discretion, the law intends it must be done by sound discretion and according to law. * * * The nature of the subject matter will, as a rule, sufficiently indicate the consideration upon which the discretion is.to be exercised.”

As to the control which the courts have over such discretion, it was held by the Supreme Court, in the 4th Ohio St., at p. 286, that:

“Although a case strong enough to justify our interposition may arise from corruption, from malicious intention or caprice, yet, in the absence of these, the court will pause before it will assume to control the discretionary powers the law intends to confide to them. The security for the faithful exercise of this discretion is found, not in the superintendence of courts of justice, but in the individual reputations of the commissioners — in the tenure of their office — in their acting openly on the rights of others, in the face of a people vigilant to watch and acute to discern, and in their being exposed to the overwhelming force of public opinion.”

In the Colorado report just referred to, the court used this language:

“Courts will not interfere with the exercise of such discretionary authority unless it has been abused. All reasonable intendments must be made in favor of the acts of officials who are under obligation to perform their duties correctly so long as they appear to be acting in good faith. In order to constitute an abuse of such discretion it must appear that it was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable.”

It will readily be seen from the foregoing authorities that the averments of the answer in this case are insufficient; that they do not show that the council of the village of Oakwood in the exercise of the authority to determine as to whether or not the grade crossings in question will be beneficial to the village, have been guilty of an abuse of the discretion vested in them by law. There is nothing in the answer which indicates either ulterior motive,' fraud, malicious intention, or caprice on the part of the legislative body of the village, and since the contract which they authorized and entered into with the city of Dayton is in accord with the general law, and is made within the provisions of Section 3615-1, this defendant is bound, as a ministerial officer of the village, when so directed to advertise the bonds for sale under the Uniform Bond Act of the state, and the answer shows no reason why the relator is not entitled to the remedy here sought. (12 Ohio, p. 54.)

The-demurrer is sustained.  