
    No. 218
    FRANKLIN CO. (Bd. of Comm.) v. DAVIS, Dir.
    U. S. Appeals, 6th Circuit
    No. 4242.
    Decided June 10, 1925
    323. COUNTY COMMISSIONERS — Where contract is entered into between county commissioners and railroad for elimination of grade crossings, and commissioners agree to pay certain proportion of costs; and subsequently the plans and specifications are changed entailing additional expenditures for the improvement, board of commissioners acquiescing in such changes as evidenced by resolution; such board is liable for the cost in excess of the amount estimated in the original contract in their proportionate share even though bonds were issued, based upon original estimate.
    1105. STATUTES — Provision that contract be filed with common pleas of county merely directory.
   DONAHUE, C. J.

James C. Davis, Director General of Railroads brought an action in the District Court to recover from the County Commissioners of Franklin County, $12,315.13 with interest, for the balance due on the county’s share of the costs in eliminating grade crossings where tracks of the Hocking Valley Railway Co. crossed two public highways at grade in said county.

It was claimed that the commissioners agreed that the company should pay 65% and the county 35% of the total cost of the improvements; that the commissioners issued bonds for the improvements for $114,000; that original specifications were changed by resolution of the commissioners and work proceeded under these changes; that the cost was greatly increased by such changes and that the sum asked for represents 35% of the increase cost over the estimate.

Attorneys — Joseph Godown and John R. King for Commissioners; Wilson & Rector for Davis; all of Columbus.

It was contended by the Commissioners that the county’s share and cost of the improvement was determined and fixed when the agreement was originally entered into, on which bonds were sold for $114,000 and that any modification of the first contract calling for expenditures in excess thereof should have been entered into with the same formalities as provided by 8863 GC., et seq. and as required in the original contract; and that the county did not have lawful authority to issue further bonds for the reason that money necessary to pay the increased cost was not provided by bond issue. The District Court rendered judgment in favor of Davis. Error was prosecuted and the Circuit Court of Appeals held:

1. The only limitation upon the plenary power of the Commissioners conferred by 8863 GC., et seq., to eliminate grade crossings is that the county shall not be required to pay more than 35% of the total cost of the improvement.
2. The county auditor, under these sections, is not required to certify that money necessary for payment of county’s share is in the treasury to the credit of the fund from which it is to be drawn.
3. To the contrary, 8870 GC. contemplates that bonds shall be issued for the purpose of raising money to pay the county’s proportion or the cost after, and not before, the contracting for improvement.
4. It is claimed that modification of the original contract should have been entered into with the same formalities as required by the original contract. This was exactly what was done. The contract changing the plans of the original contract consisted of resolutions by the Commissioners accepted by the Director General.
5. Provision that such contracts shall be filed in the Common Pleas court of the county is directory only, 20 O. Cir. Ct. R. (n.s.) 47. The Common Pleas is not required to approve such contract or make an order in reference thereto. If it were the statute in this respect would probably be unconstitutional. 18 N. P. (n.s.) 29.
6. The Commissioners did not exhaust its power to issue further bonds; 8871 GC. contemplates issuing further bonds to pay county’s share of compensation and damages when total amount thereof has been definitely ascertained.

Judgment affirmed.  