
    Common Pleas Court of Montgomery County.
    Nelson v. Village of Oakwood et al.
    Decided June 7, 1929.
    
      
      Geo. R. Murray, attorney for plaintiff.
    
      Wm. M. Matthews, attorney for Village of Oakwood.
   Snediker, J.

This case is before the court on a general demurrer. The petition asks that the village of Oakwood be enjoined from proceeding with an agreement entered into with the city of Dayton for the elimination of grade crossings in the latter city, and from issuing bonds in pursuance of that agreement.

The petition recites that on August 20, 1926, an ordinance was passed by the village of Oakwood fixing the terms and conditions of its agreement with the city of Dayton for the purpose to which we have referred, and specifying among other things that the village of Oakwood should pay therefor not to exceed $400,000, which sum is approximately one-twentieth of the portion of the cost of the. elimination of grade crossings in the city of Dayton to be paid by both Oakwood and Dayton, which in all is 35 per cent, of the cost of the improvement.

The claim of the plaintiff is that the contract is illegal and void, and that the village of Oakwood had no power or authority iñ law to enter thereinto. After the contract was made on August 20, 1926, the council of Oakwood passed a resolution of necessity for the issuance of $400,-000 bonds for the payment of its portion of the cost of the elimination of the grade crossings in the city of Dayton. Pursuant to that resolution the village clerk made a certificate thereof to the auditor of Montgomery county for the purpose of a calculation of the average annual tax levy on account of the bonds. The auditor certified to the village that the average annual levy was 1.55 mills. Thereafter, on the 27th day of August, 1926, the village council of Oakwood passed a resolution declaring it necessary to issue bonds in the sum of $400,000 for the purpose of providing the money required for its portion of the cost. The question of the issuance of the bonds was submitted to the voters and was carried by a large majority. On April 15, 1929, the village council passed an ordinance to approve plans and specifications for railroad grade crossing elimination at certain streets. On the 5th day of April, 1929, the council of Oakwood passed an ordinance providing for the issuance of $30,000 bonds for the purpose of providing money for the payment of part of the portion of the cost of the elimination of grade crossings in the city of Dayton to be paid by the village of Oakwood. The plaintiff complains that all of these proceedings are illegal and void, and that the village had no authority in law to issue bonds and to expend money for improvements wholly outside of its territorial limits.

In considering this demurrer we have recourse to Section 3615-1 of the General Code, under which the authority was exercised by the two municipalities to enter into the agreement, and in pursuance of which the different resolutions were passed by the council of the village of Oakwood. This section 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 parety thereto, which ordinance shall set forth the agreement in full, and when so approved shall be a binding contract between such municipalities.
Any agreement so entered into, shall provide (a) for the method by which the work, utility or improvement specified therein shall be jointly constructed or managed; (b) for the method by which any specified power or powers shall be jointly exercised; and (c) for apportioning among the contracting municipalities any cost or expense of jointly _ constructing, maintaining or managing any work, utility or improvement or jointly exercising any power; and any such agreement may provide, (a) for assessing the cost, or any specified part of the cost, of the joint contsruction, maintenance or management of any public work, utility or improvement upon abutting property specially benefited thereby, or (b) for assessing the cost, or any specified part of the cost, of constructing, maintaining, or managing any such public work, utility or improvement upon the property within any district clearly specified in such agreement, in proportion to benefits derived by suck property from such work, utility or improvement.'
Each such municipality may issue bonds for its portion of the cost of any such public work, utility or improvement, where the provisions of the 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.”

It is contended by counsel representing the plaintiff that there cannot be found within the powers conferred upon municipal corporations by the General Code of Ohio any authority to issue bonds for the purpose specified in this section. He has made particular reference to Section 3939 of the General Code in which are found 29 specific purposes for which a municipality may issue bonds in this state. He insists that this section only shall be taken as the general law authorizing the issuing of bonds, and since there is no provision for these bonds there, the power conferred by Section 3615-1 cannot be exercised in that behalf.

The “general laws” of this state are its constitution and its code, so that if we find in either an authority or power conferred upon municipalities to issue bonds for an improvement of the kind contemplated by the contract of the city of Dayton and the village of Oakwood, then there can be no question but that these municipalities may jointly exercise such power and issue bonds for their respective portions of the cost of the improvement.

Section 8874 of the General Code in part reads:

“Any municipal corporation may raise or lower, or cause to be raised or lowered, the grade of any street or way owned by it, either within or without its municipal limits, above or below railroad tracks, and may require any railroad company operating a railroad across such streets or ways to raise or lower the grade of its tracks.”

Let it be remembered that reference is here had to “the grade of any street * * * either within or without its municipal limits.” At Section 8890 of the General Code, the following provisions are made for -file bond issue, for the exercise of the powers conferred by Section 8874.

Section 8890 reads:

“For the purpose of raising the money to pay the proportion of the cost of such improvement payable by the municipality, the bonds of the municipality may be issued in the necessary amount and shall be of such denomination and payable at such place and- times as the council determines, and bear interest not exceeding six per cent, per annum, and shall not be sold for less than par value.”

So that we find 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. 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 as long as either is 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 both are so acting, 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.

This petition does not contain within its language any averment of “no benefit” to or “lack of interest” in the improvement of the village of Oakwood. In argument such interest and benefit were conceded by counsel for the plaintiff.

In the case of President, Directors and Company of the Bank of Chillicothe v. Mayor and Commonality of the Town of Chillicothe, 7th Ohio, Part 2, page 31, Judge Hitchcock uses this language:

“As a general principle no corporation can exercise powers not granted in its act of incorporation. This act is its constitution, and whenever it oversteps the limits therein prescribed its acts so far become void. But where certain powers are specifically granted these carry with them such others as incidental thereto are necessary to carry those specified into effect.”

The demurrer is overruled.  