
    The State of Ohio, ex rel. William Waddle, v. Henry M. Pinto, City Clerk of Chillicothe.
    The sixth section of the “act to amend the act entitled an act to provide for the organization of cities and incorporated villages” (Swan’s Rev. Stat. 979), authorizes any city in which water-works are or may be situated, or in progress of construction, to establish a board of trustees of water-works.
    Where a city has no water-works situate therein, and has done no more than to authorize the borrowing of money for the purpose of constructing waterworks, an ordinance establishing a board of trustees of water-works is premature and unwarranted, and such board may be legally abolished by the repeal of such ordinance.
    Motion for a peremptory mandamus.
    On the 9th of May, 1857, on the application of the relator, an alternative writ of mandamus was issued out of this court to the defendant, reciting, among other things, that under the authority of the provisions of an act of the general assembly, “ to amend the-act entitled an act to provide for the organization of cities and incorporated villages,” passed March 11,1853, the city ^council of Chillicothe, on the 23d day of July, 1853, adopted an ordinance-“for borrowing money for the erection of water-works,” and that, in pursuance of said ordinance the electors of the city, by a vote-on that question duly submitted to them, did approve of a loan of' $70,000 being made by the city, for the erection of water-works, and of the bonds of the city being issued therefor. That on the-13th day of October, 185.3, said city council adopted another ordinance “providing for the trustees of water-works,” in pursuance-of which three trustees were, on the second Tuesday of November,. 1853, duly chosen by the electors of the city; one for the term of one year, one for two years, and one for three years. That said-trustees, in pursuance of an ordinance of March 9, 1854, “ establishing a board of trustees of water-works, and defining the duties-thereof,” did severally enter into bond with sureties, to the acceptance of the city council, conditioned for the honest and faithful-performance of his duties as such trustee.. That in pursuance of certain resolutions adopted by the city council, April 28,1855, the-president of the council caused the bonds of the city to be duly executed for $70,000, under the seal of the city, to be applied to. the-raising of said sum of money for the use and purpose of erecting-water-works in said city, and that said bonds were delivered by the-mayor to the trustees then in office. That said board of trustees-has been perpetuated by annual elections in said city, and that on the first Monday of Ajxril, 1857, at the election held to choose officers for the city, the relator, William Waddle, was duly elected a-trustee of water-works for the term of three years; but that the-defendant, Henry M. Pinto, city clerk of Chillicothe, has refused, and still refuses, to give to said Waddle a certificate of his election to said office of trustee. , . „
    The alternative writ therefore commands said city clerk, immediately upon the receipt of the writ, to make and deliver to said Waddle a certificate in due form of law of his election to said office of trustee for the term of three years from the first Monday of April, a. d. 1857, or that he make answer to the court on the 14th. of May, 1857, why he has refused and still refuses so to do.
    *The defendant, still refusing to issue the certificate to Waddle, returned the alternative 'writ with his answer, in which he says : “ That he admits the several matters and things stated in the petition filed herein to be true in manner as therein stated; but says that on the 31st day of March, 1857, there being then and there no water-works situate in said city, or in progress of construction therein, the said city council of the city of Chillicothe 'passed an ordinance entitled < an ordinance abolishing the board of trustees of water-works,’ whereby it is enacted that the ordinance entitled ‘ an ordinance establishing a board of trustees of water-works, and defining their duties,’ passed March 9, 1854, be and the same is hereby repealed; which said ordinance took effect from and after the day of its passage; a copy of which ordinance is hereunto annexed.”
    The relator demurs to this answer, on the ground that it does not state facts constituting a defense to the writ.
    
      John L. Green and A. G. Thurman, for the relator.
    
      Miller & Blacker, and W. BT. Safford, for defendant.
   Brinkerhoff, J.

The sixth section of “the act to amend the •act entitled ‘ an act to provide for the organization of cities and incorporated villages,’ ” passed March 11, 1853 (Swan’s Rev. Stat. '979), provides, that “the city council of any city in which waterworks are, or may be situated, or in progress of construction, shall establish a board of three trustees, to be known as the trustees of wat§r-works, who shall be elected by the qualified electors of the •city, and hold their offices for the term of three years,” etc.

On the part of the relator, it is contended that, by the facts •stated in the alternative writ and admitted in the answer, the city • of Chillicothe is brought within the category of cities which, by the terms of the section above quoted, of the act of March 11, 1853, are authorized to establish a board of trustees of waterworks, and that a board thus provided for, in obedience to express •statute, can not be abolished by mere ordinance of the city council.

*On the other hand, the defendant contends that, upon the facts stated in the pleadings, the city of Chillicothe is not within the conditions prescribed in said section, and that, therefore, the ordinance establishing a board of trustees of water-works was premature and unauthorized, and that the board thus prematurely and unwarrantably established, was legally liable to be abolished by a ¿repeal of the ordinance establishing it.

Now, if the city of Chillicothe had water-works situate therein, or had them in progress of construction, then the basis of the relator’s argument is made out, and the conclusion, perhaps, for which he contends, legitimately follows. But, how are the facts? It is not alleged or pretended that Chillicothe ever had waterworks actually situate within her ; nor is it alleged that any money has ever been borrowed, or levied, or raised by taxation, for the construction of water-works, or that any contract has ever been made for that purpose, or that a shovelful of earth has ever been excavated, or 'one stone placed upon another. Taking everything alleged in the alternative writ as true, it does not appear that anything more has been done than to authorize the borrowing of money for the purpose of constructing water-works. Does this bring her within the terms of the statute, as having water-works iñ progress of construction ? We think not. It does not appear that one of her bonds has ever been negotiated, or that a dollar has ever found its way into the city treasury by any moans whatsoever, for the construction of water-works. How far the municipal authorities must go, and what precise acts will be sufficient to bring them within the condition of having water-works in “progress of construction,” it is not necessary for us to attempt to determine. It is enough that we are satisfied that a mere expression, by ordinance or otherwise, of the will and purpose of the municipality to engage in raising the means for the construction -of such works, does not bring them within the terms or the meaning of the statute.

For aught that appears in this case, the city may have been unable to negotiate its bonds on any reasonable terms; it may be unwilling to raise the necessary iunds by taxation; or the taxpayers of the city may have become satisfied that the project was -^improvident and ill-advised, and ought to be abandoned. And in either case, as no contract rights appear to have become vested, it seems to us that the municipality is legally, and ought to be, entitled to a locus pcenitentice. On the other hand, if the project of constructing waterworks has been improvidently abandoned, or ought to be revived, it would seem that the citizens have a plain and adequate remedy at the ballot-box.

Demurrer overruled, and peremptory writ denied.

Bartley, C. J., and Swan, Soott, and Sutliee, JJ„ concurred.  