
    Heffner v. The City of Toledo.
    
      City ordinance — Must contain but one object — Clearly expressed, in its title — Issuing of bonds for street improvement — Statutory requirements — Sections 1536-213, 2835, 1536-285 and 1536-287, Revised Statutes — Section 53, Municipal Code — Municipal law.
    
    1. The statutory requirement that “No by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title,” was intended to prevent the uniting in one ordinance of diverse subjects or measures and effecting its passage by uniting in its support all those in favor of any, and to prevent the adoption of ordinances by the votes of councilmen ignorant of their contents.
    2. Whether an ordinance is violative of the statutory requirement that “No by-law’sor ordinance shall contain more than one subject, which shall be clearly expressed in its title,” is to be determined not by its form, but in the light of the mischief the statute was intended to prevent.
    3. An ordinance to provide for the issuing of bonds to pay the city’s part of the cost of thirty-two street and sewer improve- - ments, entitled: “An ordinance to provide for the issue of general street improvement bonds of the City of Toledo, State of Ohio, to pay said city’s p'art of the cost and expense of improving sundry streets and alleys by paving, repaving, grading and macadamizing and by constructing sewers therein and to pay the said city’s part of the cost and expense of constructing such sewers,” is not in conflict with the -statutory requirement that “No by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title.”
    '4. A city is not authorized to issue bonds to provide a. fund from which to pay its part of the cost of improvements that may from time to time be made, but it may, under Section 53 of the Municipal Code of 1902, Section 1536-213, Revised Statutes, or under Section 2835, Revised Statutes, issue bonds to pay its part of the cost of specific improvements.
    5. The bonds authorized by Section 53 of the Muhicipal Code of 1902 can not be provided for by resolution or ordinance until after the passage of an ordinance providing for the improvement.
    6. Under Section 2835, Revised Statutes, the council of the city may by a resolution or ordinance, passed by the affirmative vote of not less than two-thirds of the members elected or appointed thereto, provide for the issuing of bonds to pay the city’s part of the cost of a specific improvement before the passage of a resolution declaring the necessity for the improvement.
    7. The Tequirement of Section 1536-285, Revised Statutes, that bonds issued for a street improvement shall have the name of the street written or printed upon them, and the requirement of Section 1536-287, Revised Statutes, that bonds issued to pay for sewers in a district shall have written or printed upon them the name and number of the district, do not apply to bonds issued to pay the city’s part of the cost of such improvements.
    (No. 10380
    Decided January 22, 1907.)
    Error to the Circuit Court of Lucas County.
    In August, T906, the city of Toledo passed an ordinance entitled: “An ordinance to provide for the issue of general street improvement bonds of the City of Toledo, State of Ohio, to pay said city’s part of the cost and expense of improving sundry streets and alleys by paving, repaving, grading and macadamizing, and by constructing sewers therein and to pay the said city’s part of the cost and expense of constructing such sewers.” To enjoin the issuing of the bonds provided for by the ordinance an action was commenced in the court of common pleas. On appeal the circuit court sustained a general demurrer to and dismissed the petition, and error is prosecuted in this court.
    It appears from the ordinance that it provided for issuing $75,000 of bonds payable in, twenty years to pay the city’s part of the cost of thirty-two improvements. The ordinance specifies the different improvements and the city’s part of the cost of each; eight are for the construction of sewers and twenty-four for the improvement of streets, of which nineteen are to be paved, three to be repaved and two are to be graded; and the city’s part of the cost ranges in round numbers from $5 for a sewer to $26,000 for repaving a street.
    It was averred in the petition that as to three of the street improvements no resolution and no ordinance had been passed, and that as to eleven of the street improvements no ordinance had been passed.
    
      Mr. B. A. Hayes, for plaintiff in error.
    The city council, by passing a single ordinance authorizing, the issue of bonds to raise funds to pay the city’s part of thirty-two different improvements, violated the policy of the law as expressed in paragraph four of the syllabus in the case of Elyria Gas & Water Co. v. City of Elyria, 57 Ohio St., 374.
    This case, like the case at bar, was one brought by a taxpayer to enjoin the issue and sale of municipal bonds. In that case there was a combination of two measures only: the purchase of water works, and the erection of water works; hete we have a combination of thirty-two improvements. This legislation is sixteen times as vicious.
    Plaintiff also claims that it is the policy of the law as to legislation regarding the making of improvements by municipal corporations, that different improvements shall not be combined in any of the various steps or stages of legislation thereon. Campbell v. City of Cincinnati, 49 Ohio St., 463.
    
      But there is the same objection to a combination of several improvements in one ordinance as there is to a combination of several improvements in several ordinances to be passed on a single roll-call.
    That a separate series of bonds should be issued for each improvement seems to be contemplated by the requirements of Sections 2706 and 2708, Revised Statutes.
    Surely it is not a compliance with these sections to print upon each of the seventy-five bonds here in question, the names of the twenty-four streets to be improved, and the numbers of the eight sewers to be constructed. The language of the sections refers to a single street or single sewer; apparently the expectation was that funds for each street or sewer should be raised with a separate issue of bonds.
    The ordinance authorizing the issue of the bonds in question was prematurely passed.
    From paragraph five of the petition it appears that as to fourteen of the streets for which the bonds were to be issued, no ordinance determining to proceed with the improvement had been passed, and as to three of them, no resolution had been passed. It further appears from the statement of facts that over fifty-two thousand dollars of the total issue of seventy-five thousand dollars is to be issued for these fourteen street improvements.
    Can bonds be issued for an improvement which council has not decided to make?
    Perhaps the council may never decide to improve one or two or more of these fourteen streets, and a vote in council to issue bonds to improve twenty-four streets and construct eight sewers is not a vote to issue bonds for the- improvement of twenty-two only, or any other number except twenty-four. 57 Ohio St., 374.
    These bonds are issued under Section 53 of the Municipal Code (Bates', 1536-213, 97 O. L., 126), the latter part of which reads: “Provided that any city or village is hereby authorized to issue and sell its bonds as other bonds are sold to pay the corporation's part of any improvement as aforesaidtherefore they can be issued only “as aforesaid”; the words “as aforesaid” plainly refer to the sentence in the middle of section beginning :
    “In all municipalities, the corporation shall pay such part of the cost and expense of improvements for which special assessments are levied as council may deem just, which part shall not be less than one-fiftieth of all such cost and expenses; and in addition thereto, the corporation shall pay the cost of intersections.”
    But special assessments are never levied except in cases where ordinances determining to improve have been passed. Section 55 of the Municipal Code (97 O. L., 122).
    Nor can it be known what amount of bonds to issue until after the board of public service has determined of what material the improvement shall be made; but this board can not determine that fact until the council has passed the improvement ordinance containing “a statement of the general nature of the improvement and the character of’ the materials which may be bid upon therefor.”
    Therefore under this Section 55 (Bates', 1536-■215) no bonds can be issued to pay the city’s part of a street improvement where no improvement ordinance has been passed.
    Bonds to pay the city’s part of an improvement should be a part of the same issue as those to be paid from assessments on benefited property. Section 51 of the Municipal Code (Bates’, 1536-2i 1, 97 O. L., 121).
    Under Section 51 bonds may be issued to pay that part of the cost of the improvements which is to be assessed on benefited property; under Section 53 bonds may be issued to pay the city’s part of improvements; under Section 95 (Bates’, 1536-281) bonds may be issued sufficient “to pay the estimated cost and expense of the improvement for which such special assessments are levied.”
    Under Section 95, the issue of bonds may be sufficient to pay the estimated cost of the improvement, not only that to be assessed upon the benefited property, but also the city’s part of the improvement. These three sections were construed in the case of Emmert v. City of Elyria, 78 N. E. Rep., 269, 272.
    
      Mr. Charles S. Northup, city solicitor, and Mr. John P. Mantón, for defendant in error.
    The bonds provided for in the ordinance set out in the petition are to be issued for the purpose of raising a fund to pay the costs of the portion of the improvement lying within street intersections, and a percentage, which ranges from two per cent, to fifty per cent., of the whole cost of the improvement, as required by the second and third paragraphs of Section 53 of the Municipal Code.
    
      Thé bonds provided for in the ordinance set out in the petition are -authorized by the last paragraph of said Section 53 of the Municipal Code.
    The words “any improvement as aforesaid” in this paragraph manifestly refer to “improvements for which special assessments are levied” as referred to in the first paragraph of said Section 53, wherein it is provided that “the corporation shall pay such part of the cost and expense of improvements for which special assessments are levied as council shall deem just.”
    It is contended by the plaintiff in error that the ordinance providing for the issue of bonds violates the' provision of Section 1694, Revised Statutes, which says:
    “No by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title.”
    Practically the only ground upon which this bond issue is attacked is that the ordinance providing for the issue violates the foregoing requirement.
    The subject of the ordinance is the issue of bonds; the purpose is to raise a fund to pay the city’s portion of the cost of certain improvements. This ordinance does not provide for making the improvements; that has been or will be provided for by other legislation and.each improvement will be provided for by a separate resolution and ordinance. The case of Elyria Gas & Water Company v. Elyria, 57 Ohio St., 374, does not apply to the facts in this case. The council in the Elyria case provided for an issue of bonds for two purposes in one ordinance." No opportunity was given • the electors to indicate which purpose they desired to support, by reason of the two purposes having been included in the one ordinance. The court in that decision seem to have construed “subject of the ordinance” to mean “purpose for which bonds are to be issued.” The ordinance in this case provides bonds for but one purpose.
    ■ Now, this ordinance declares these bonds are to be issued “to pay the city’s portion of the cost;” it follows that a portion is to be paid by some persons other than the city or the general taxpayers, and as it can be no other than the owners of the property specially benefited, special assessments must be levied to pay such portion. Then these are improvements coming within Section 53 of the Municipal Code.
    There are but two ways of providing for the cost and expense of municipal improvements; it must be done either by levy of a general tax or by special assessment. If these improvements were to be paid for ultimately by a tax levy, the bonds would be issued for the whole cost of the improvement and not the city’s portion.
    Prior to the act of October 22, 1902 (the new Municipal Code), Section 2273, Revised .Statutes, required certain cities to pay a portion of the costs of improvements, and Section 2274, Revised Statutes, required certain cities to pay the costs of improvements lying within street intersections, and these sections authorized a special tax to be levied to pay the city’s portion of the costs, but there was no authority to issue any bonds for the purpose. of paying the city’s portion; the provision in Section 53 of the new Municipal Code is the first act authorizing the issue and sale of bonds for such purpose. The provisions of Sections 2273 and 2274 were reenacted in Section 53 of the new code and the provision added authorizing the issue of bonds.
    The general provisions relative to municipal bonds are found in the act of April 29, 1902, known as the Long worth Bond Act, contained in Section 2835, Revised Statutes, et seq. This act was in effect prior to the passage of the Municipal Code, and the powers given by Section 53 of the code are in addition to the authority conferred by the Longworth Act and for a purpose not enumerated in that act.
    The requirements of Section 2706 and 2708 that bonds issued for street or sewer purposes shall have the name of the street and the name and number of the sewer district printed thereon, were intended to identify the fund which should redeem such bonds, and they were intended to apply only where special assessments were levied upon specially benefited property to pay for the improvements, the law requiring that when such assessments were collected they should be turned over to the sinking fund trustees to form a fund for the redemption of the bonds issued to pay for the respective improvements. These sections followed Sections 2704 and 2705, which provided for borrowing money and authorized the issuing of bonds in anticipation of special assessments. These last mentioned sections were repealed by the act of October 22, 1902, and substantially re-enacted in Sections 95 and 95a of the Municipal Code, and both of these sections require that when assessments are paid they shall be applied to the liquidation of the bonds and notes issued to pay the cost and expense of improvements in anticipation of the collection of the assessments.
    Now the bonds to be issued under the ordinance attacked in this case are not to be liquidated from assessments collected, but must be paid • from the tax levied for the sinking fund.
    If the city of Toledo issued bonds for the establishment of water works or a municipal lighting plant, it would be providing for the improvement of many streets and public places, but it will not be contended that it should have a separate issue of bonds for each street or public place, and it could issue such bonds before it had legislated for the particular streets or places to be improved by supplying water or light therefor.
    Section 91 of the Municipal Code provides for borrowing money to pay the expense of constructing main sewers and branches. The chy is not required by this section to have a separate issue for each main sewer or branch; it may provide.by one issue of bonds for the construction of the whole sewage system. The municipality may determine by one legislative act to improve all the streets in a certain section, and if the cost •and expense are not to be specially assessed, but are to be paid ultimately out of the general revenue, it could provide for the cost and expense by one issue of bonds under the Longworth Act (Section 2835, Revised Statutes).
   Summers, J.

This case was orally argued to one division of the court, but has been considered by the whole court.

Several questions are raised. First, whether the ordinance violates the requirement of Section 1694, Revised Statutes (1536-620, Bates’ 5th Ed.), that: “No by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title.” Second, whether a city may issue bonds to provide a fund to' pay the city’s part of the cost of improvements that are in part to be paid for by special assessments. Third, may it issue and sell its bonds to pay its part of an improvement which it has not by resolution declared necessary? Fourth, may it issue and sell its bonds for .that purpose after the passage of such a resolution, but before it has passed an ordinance to proceed with the improvement ?

The requirement of Section 1694 that: “No bylaw or ordinance shall contain more than one subject, which shall be clearly expressed in its title,” evidently was suggested by the provision of Section 16 of Article 2 of the constitution that: “No bill shall contain more than one subject, which shall be clearly expressed in its title.” The latter provision has been held to be directory (Pim v. Nicholson, 6 Ohio St., 176), and if the former were so it would not require further consideration, but it has been held mandatory (Bloom v. City of Xenia, 32 Ohio St., 461; Campbell v. City of Cincinnati et al., 49 Ohio St., 463). No cases interpreting the former provision are cited and the latter having been held directory has not been the subject of much consideration here, and so light as to its meaning is to be sought in cases interpreting similar provisions in the constitutions of other states. .•

In People, ex rel., v. Mahaney, 13 Mich., 481, it is said: “The history and purpose of this constitutional provision are too well understood to require any elucidation at our hands. The practice of bringing together into one bill subjects diverse in their nature and having no necessary connection, with a view to combine' in their favor the advocates of all, and thus secure the passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the state. It was scarcely more so, however, than another practice, also intended to be remedied by this provision, by which, through dexterous management, clauses were inserted in bills of which the titles gave no intimation, and their passage secured through legislative bodies whose members were not generally aware vof their intention and effect. There was no design by this clause to embarrass legislation by making laws unnecessarily restrictive in their scope and operation, and thus multiplying their number; but the framers of the constitution meant to put an end to legislation of the vicious character referred to, which was little less than a fraud upon the public, and to require that in ever)'- case the proposed measure should stand upon its own merits, and that the legislature should be fairly satisfied of its design when required to pass upon it.” And Judge Cooley says (Cooley’s Const. Lim., 7th Ed., 205) : “The general purpose of these provisions is accomplished when a law has but one general object, which is fairly indicated by its title. To require every end and means necessary or convenient . for the accomplishment of this general object to be provided for by a separate act relating to that alone, • would not only be unreasonable, but would actually render legislation impossible.”

To accomplish the object of the ordinance under consideration thirty-two ordinances might have been passed, or one ordinance might have been so drawn that it could be said to contain thirty-two subjects, and yet the ordinance in question is so drawn that it contains but one general subject,’ viz.: providing funds, by the issuing of bonds, to pay the city’s part of the cost of certain improvements. Of course it is not intended that it may he inferred that the mere form of the ordinance shall determine whether it is in conflict with the statute. To determine that question the ordinance must be examined in the light of the mischief the statute was intended to prevent. The issuing of bonds to pay the city’s part of the cost of such improvements is merely incidental to the making of the improvement, and council can not provide for the making of the separate improvements without the concurrence of- three-fourths of the whole number of members elected to council, unless the owners of a majority of the foot frontage to be assessed petition in writing therefor, and in that event the concurrence of a majority of the whole number elected is essential. And if a greater part of the cost of the improvement than that required by statute is to be paid by the corporation, it must be provided for in the resolution or ordinance providing for the improvement. It would seem, therefore, that the ordinance in question is not within the mischief intended to be prevented by the statute. The following illustrative cases may be referred to. In State v. Wells, 46 Iowa, 662, the title of the ordinance was: “An ordinance defining and prescribing punishment for certain offenses.” The ordinance defined and prescribed the punishment for twenty-six offenses, and it was contended that the ordinance had as many subjects. Beck, J., said: “This is clearly a mistake. The subject of the ordinance is offenses against the city. The one subject is composed of many parts.” In City of Seattle v. Barto, 31 Wash., 141, the ordinance is entitled: “An ordinance to license and regulate certain trades and occupations in the city of Seattle, providing penalties for the violation thereof, and repealing all ordinances . inconsistent therewith.” The ordinance contained provisions relating to the licensing and regulating of various trades and occupations, among which were auctioneers, second-hand dealers, billposters, hotel runners, persons engaged in the temporary sale of goods, and pawnbrokers. Fullerton, C. J., says: “It was not intended by the requirement contained in the charter that the city council should not pass an ordinance having a general object, and bring within its terms all matters pertaining to that object, whether it embrace a number of persons or a variety of trades and occupations. The term ‘object’ was not used in the sense of ‘number’ or ‘variety,’ nor was .it intended to require a distinct legislative act for each particular matter legislated upon. It was intended to prevent the union in one act of diverse, incongruous and disconiiected matters, having no relation to or connection with each other, but was not intended to prevent the lawmaking power from enacting under a general title provisions affecting a variety of matters, so long as there is a natural connection between the several matters and the object named in the title.” The opinion is too long to quote, but is deserving of consideration by any one investigating the question. In City of St. Louis v. Weitzel, 130 Mo., 600, an ordinance entitled, “An ordinance regulating the keeping, storing and handling and licensing the removal of garbage, grease, offal and other refuse matter composed of either animal or vegetable matter,” and to repeal a prior ordinance on the same subject, “and prescribing penalties for the violation thereof, and fixing a license tax on vehicles used for the removal of garbage,” was held not to be in violation of such a provision, for the ordinance itself relates only to garbage and offal. And in Weber v. Johnson, 37 Mo. App., 601, an ordinance which provided both for the grading and paving of an alley was upheld. In Stebbins v. Mayer, 38 Kan., 573, the title of the ordinance was, “An ordinance prohibiting animals from running at large in the city.” Section 1 provided what animals should be prohibited from- running at large, but Section 2 provided that no person should keep a dog within the limits of the city without complying with certain regulations, among which was the payment of a tax, and directing the city marshal to kill all dogs found running at large whose owners had not complied with such regulations, and making the owner liable for criminal prosecution for failure to comply therewith, and for that reason it was held to be in violation of the provision that: “No ordinance shall contain more than one subject, which shall be clearly expressed in its title.”

Before the present Municipal Code cities were authorized to assess the cost and expense of such improvements upon the abutting property, excepting that not less than one-fiftieth of the cost and expense of the improvement and the estimated cost of that part of it included in street intersections was required to be paid by the city. The city was not authorized to levy a tax to provide a fund from which its part of such cost might be paid from time to time as improvements were made, but the amount it was to pay was, when ascertained, assessed upon all the taxable property in the city and certified to the county auditor for .collection as other taxes. This levy could not be made until the improvement had been ordered, which could be done only by ordinance after the expiration of the time limited for the filing of claims .for damages. When the improvement was extensive, or there were numerous improvements, or the city elected to pay a larger proportion of the cost, often the burden was too large to be borne in one year and bonds could be issued only when authorized by an election. The steps necessary to the making of an improvement were so numerous that they made it impracticable in many instances for public officials to originate and complete an improvement during their term ■ of office, hence the fruitful source of much special legislation. To remove this mischief, the so-called Longworth bond law was passed (95 O. L., 318). At that time provision was made, by Sec-' tions 2835, 2836 and 2837, Revised Statutes, that bonds might be issued for twenty distinct purposes,, therein specified, and that in addition -to the taxes otherwise authorized, a tax sufficient to pay the bonds falling due, and the interest thereon, should be levied every year during the life of the bonds; provided, that before the bonds. were issued, or any tax levied, the question of issuing the bonds should be determined at a general or special election.

Among the purposes enumerated in Section 2835 for which bonds were authorized, was the construction of sewers. The Longworth law added a number of.purposes, among them: “22. For resurfacing, repairing or improving any existing street or streets as well as other public highways.” “23. For opening, widening and extending any street or public highway.” “24. For purchasing or condemning any land necessary for street or highway purposes, and for improving the same or paying any portion of the cost of such improvement,” and provided that bonds for any or all of the enumerated purposes might be issued whenever declared necessary by the affirmative vote of .two-thirds of the members of the municipal legislative body. The act limited the amount of bonds that might be issued in any one year to one per cent, of the total tax value of all the property in the corporation, and the .aggregate of such bonded indebtedness unpaid to four per cent, unless an excess, but in no event to exceed eight per cent., was authorized by the electors at a general or special election. This law was not repealed, but was expressly continued in force by Section 100 of the Municipal Code of 1902, and is sufficiently comprehensive to include the issuing of bonds for the purpose specified in the ordinance.

The substance of Sections 2273 and 2274, Revised Statutes, providing that the city should pay for the intersections -and not less than one-fiftieth of the cost of the improvement, was embraced in Section 53 of the Municipal Code of 1902, and this provision was added: “Provided, that any city or village is hereby authorized to issue and sell its bonds as other bonds are sold to pay the corporation’s part of any improvement as aforesaid, and may levy taxes in addition to all other taxes authorized by law to pay such bonds and the interest thereon.” If this was the only authority to issue bonds for this purpose, it might be that there was power only to meet the city’s part of the cost by issuing bonds instead of by a levy, and, as the latter could not be made until an ordinance to proceed with the improvement had been passed, that counsel’s contention is sound that that is a prerequisite to the issuing of the bonds. But, as has been shown, the authority already existed in the Longworth law, and the provision in Section 53 is not to be construed as limiting the powers conferred by the Longworth law, but as a grant of additional power. Attention to the provisions of the Longworth law, as well as to the provisions of the sections that it amended, will disclose that, as there conferred, the power was not limited to the issuing of bonds to pay the city’s part of the cost of improvements that had been provided for by ordinance, but might be exercised when they were merely contemplated. It was not necessary that a resolution should have been passed declaring the intention to make the improvement, but the statement in the ordinance providing for the bonds, that they were to be issued for a specific purpose, was sufficient evidence of the intention.

The requirement of Section 1536-285, Revised Statutes, that bonds issued for" a street' improvement shall have the name of the street written or printed upon them, and the requirement of Section 1536-287, Revised Statutes, that bonds issued to pay for sewers in a district shall have written or printed upon them the name and number of the district, do not apply to bonds issued to pay the city’s part of the cost of such improvements, but to bonds issued in anticipation of special assessments. This will appear on inspection of the original sections, and there is reason- why such requirement should be made respecting special assessments and • none occurs respecting the part paid by the city. The special assessment is based upon the special benefits from the particular improvement to the property assessed, and can be applied to no other purpose, and it is important, therefore, that the bonds issued in anticipation of its collection be identified, but the assessment to pay the city’s part. of the cost of such improvements is a tax levied upon all the taxable property of the city, and while it may be applied only to the purpose for which it was levied, yet it is not material so long as it is so used that the particular improvement be identified.

Judgment affirmed.

Si-iauck, C. J., Price, Crew, Spear and Davis, JJ-, concur.  