
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Smith, Swing and Giffen, JJ.
    THE STATE OF OHIO, ex rel. THE VILLAGE OF PLEASANT RIDGE v. HENRY K. STALEY, Mayor.
    
      Mandamus to compel mayor to sign bonds — What petition must aver—
    
    The Mayor of a village can not be compelled by mandamus to sign bonds issued by the village for the purpose of extending the time of payment of an existing and binding obligation, unless the petition alleges that council has determined the particular indebtedness to'be valid which it is proposed tore-fund or extend, the aggregate amount of bonds to be issued, their denomination, rate of interest, date of maturity, place of payment, etc. in full conformity with the provisions of sec. 2701R. S.; and if the allegations are denied,there must be proof that council has substantially complied with the requirements of the statute.
    In Mandamus.
   Smith, J.

We are of the. opinion that the demurrer of the defendant to the petition should be sustained upon the ground that it does not state facts sufficient to constitute a cause of action against him.

Section 2701, Revised Statutes, authorizes the council of a municipal corporation “for the purpose of extending the time for' the payment of any indebtedness, which from its limits of taxation such corporation is unable to pay at maturity,.or when it appears to the said trustees or council for the best interest of said municipal corporation to issue bonds of such corporation, or borrow money so as to change but not to increase the indebtedness, in such amounts and for such length of time and at such rate of interest as the council may deem proper, not to exceed the rate of six per cent, per annum, payable annually or semi-annually; provided, however, that no indebtedness of any such municipal corporation shall be funded, refunded or extended, unless such indebtedness shall first be determined to be an existing, valid and binding obligation of any such municipal corporation, by a formal resolution of the trustees or counoil of such municipal corporation, which resolution shall also state the amount of the existing indebtedness to be funded, refunded or extended, the aggregate amount of bonds to be issued therefor, their number and denomination, the date of maturity, the rate of interest they shall bear, and the place of payment of principal and interest,”

The allegations of the petition in this case, brought to compel the mayor of the village to sign bonds claimed to have been issued by the village under the provisions of this section, on this point are substantially these:

‘‘That on or about the 21st day of January, A, D. 1899, the council of'said village, then sitting in regular session, duly passed and adopted a resolution entitled, ‘A resolution declaring certain indebtedness to be existing, valid and binding obligations of the village of Pleasant Ridge, Hamilton county, Ohio, and providing for the issuing of bonds to change and extend the time of payment of the same’ ”

The petition further states that upon the same day the council of the said village duly passed and adopted an ordinance, numbered 397, and entitled, ‘‘An ordinance to issue bonds in the sum of $7,534,08, to change and extend the time of payment of certain indebtedness heretofore incurred for certain improvements, and heretofore declared by resolution of the village council to be existing, valid and binding obligations of the village of Pleasant Ridge, Ohio.” These are the only references made in the pleading to the said resolution or ordinance, except that the petition subsequently states ‘‘that said resolution and ordinance provided for interest coupons to be attached to said bonds, and interest to be at the rate of five per cent., payable annually.”

It is manifest, therefore, that in the petition it is not alleged, nor is it made to appear to the court, that the resolution itself did declare and determine any particular indebtedness to be an existing, valid and binding obligation of such village, nor that it stated that amount of the existng indebtedness to be funded, refunded or extended, or the aggregate amount of bonds to be issued therefor, their number and denomniation, the date of maturity, the rate of interest they shall bear, and the place of payment of principal and interest. All of these things seem by the statute necessary to be done before the council is authorized to issue the bonds, And in our judgment, it is necessary in this proceeding to compel the mayor to sign said bonds, to aver in the petition, and if denied, to prove that these requirements of the statutes have been substantially complied-with.

J. J. Acomb, for Plaintiff.

James R. Mack, contra,

For these reasons we hold that the demurrer .should be sustained. Leave will be given the plaintiff to amend the petition within such time as he debires, and leave to defendant to plead or demur within three days thereafter, so that the case may be speedily submitted if desired by the parties.  