
    LIMITATIONS ON MUNICIPAL BONDING POWER.
    [Common Pleas Court of Mercer County.]
    J. F. Smith, a Tax-payer, etc., v. The Village of Rockford, Ohio, et al.
    Decided, September 14, 1906.
    
      Municipal Corporations — Application of the Long-worth Act to Street Intersection Bonds — Limitation of Indebtedness -which May be Incurred in One Fiscal Year — Without Authorization by the People— Injunction.
    
    Bonds issued by a municipality, sometimes called “intersection bonds,” to pay the corporation’s share of sewer and street improvements, and to be paid for by general taxation upon all the taxable property within the municipality, come within the limitations and restrictions of the Longworth Bond Act (Section 100 of the Municipal Code and Sections 2835, 28356, et seq., Revised Statutes, as supplemented and amended in 1904 and 1906), and hence the total aggregate issue of such bonds and other bonds coming under the Longworth Act must not exceed the one per cent, limit in any one fiscal year, without submitting the question of such issue to the vote of the people.
   Cunningham, J.

Heard on motion to dismiss temporary injunction.

It is unnecessary for the court to enter into, a discussion of the ease tendered by the petition in its entirety, but I will content myself by stating enough of the issue to apply conclusions to which I have come.

The village of Rockford, Mercer county, Ohio, has an entire tax duplicate of about $360,000; one per cent, of which would be $3,600. The town council of that village has determined to improve two certain streets therein, and build certain sanitary sewers; the streets to be paid for by assessment upon the abutting property, and by the village, under Section 53 of the municipal code, and the sewers by assessment upon the property benefited, and by the village likewise.

It will be necessary for the village, in order to pay for its share of these improvements, to issue its bonds for substantially the sum of $17,000, which it is proceeding to do; and has sold, but not yet delivered, said bonds.

The question as to whether or not said improvement should be made, or said bonded indebtedness created, was not submitted, under the statute, to the voters of said municipality. ' The plaintiff claims that it is beyond the power of said village to create said bonded indebtedness, without submitting the same to a vote, because such act will be in violation of Section 2835 of the Revised Statutes of Ohio, which is now substantially, Section 100 of the municipal code. The defendant claims that the council has within its powef, and depended for that power upon a provision of Section 53 of the municipal code, which directly provides that the council has the power to make the improvements herein contemplated, and shall have the power to issue its bonds to raise the money to pay for the city’s share of said improvements and to build the intersections.

These two sections appear to directly conflict; Section 2835 interfering, under the state, of facte before US, with the carrying out of the provisions of Section 53. The plaintiff says that the two sections must be construed together and that, so taken, mean that the city can issue its bonds, as provided by Section 53, when such act does not violate the provisions of Section 2835. The defendants urge that Section 53 operates as an exception to the rule laid down in Section 2835; or, rather, that the indebtedness described by Section 53 is not contemplated by Section 2835, and is not of the class governed by said last mentioned act. As the court determines which of these contentions is right, so must his conclusion follow as to what his order should be in this case.

The question here involved is of exceeding importance. The court feels very much embarrassed in passing upon the question raised, for the reason that another judge of this sub-division has passed upon the question substantially, as has at least one other and able judge of common pleas in the state. This case was argued very fully. Counsel on both sides seem to have been impressed with the importance of the question raised, and I have, to the best of my ability, carefully examined the briefs filed, and carefully weighed the argument and confess to a very great uncertainty as to what the legislative’intent in this case was.

A court should not interfere with the efforts of a municipality to improve, thus interfering with the right of a municipality to govern itself, unless some one’s right is being interfered with, and the intent and meaning of the law not being carried out. I can not agree with the reasoning of Judge Bigger, whose decision upon this question has been submitted to me, and which decision is carefully and well considered, for the reason that he seems to base his conclusion flatly upon one proposition, and that is, that what he terms “intersection bonds” do not come under the class of bonds described in Section 2835. He does'not explain, in his decision, why they do not. That act (Section 2835), in describing the bonds to which it refers, use the definition, “Bonds for re-surfacing, repairing, or improving any existing street, or streets, as well as other public highways, ’ ’ and that is exactly the kind of bonds involved in this action. Intersection bonds, as that' court ealls them, are bonds issued for the purpose of raising money to build intersections of streets $s a part of an improvement upon those streets; and, further than that, raise the money to pay the city’s share of not less than l-50th of the entire cost of the improvement outside of the intersections.

I, therefore, believe that that kind of a bond is controlled by Section 2835. I, therefore, believe these two sections of the statute only apparently are in direct conflict. I believe Section 2835 to be a general statute by which the Legislature intended to control the action of town councils in their expenditures, and that all their expenditures, for the purposes named in that statute, are controlled in that act, unless explicitly excepted by the special act providing for them.

I confess that the application of that act tends to delay corporations in carrying out the improvement of its streets. My first impression was, that had the Legislature intended the bonds described in Section 53 to be governed by the provisions of Section 2835, it would have taken the pains to directly provide for the issuance of bonds, as it does in Section 53, and I was inclined to think that the proper method of construing these statutes was to hold that Section 53, having been passed after Section 2835, although the latter was re-enacted at the same time as the former when they were both carried into the municipal code, so-called, could be treated, under a familiar rule, as having been intended by the Legislature as an exception. But in examining the act, at page 516 of O. L., Yol. 97, on page 520, and applying there that same rule, I find that Section 2835 has been, since the passage of these two acts as above referred to, supplemented as Section 2835b; and, I believe that I am relieved from further examination into the construction that ought to be given these two laws by that supplement. I believe that in that supplement the Legislature has itself construed these sections. It reads as follows:

“Provided further, that the limitations of one per cent, and four per cent, prescribed in Section 2835, shall not be construed as affecting bonds issued under authority of Section 2835, upon the approval of the electors of the corporation. Nor shall bonds which are held to be paid for by assessments specially levied upon abutting properly be deemed as subject to the provisions of said section,’’

Layion & Son. and John W. Loree, for plaintiff.

J. D. Johnson and E. E. Jackson,, for defendants.

As is shown by that supplement the Legislature had under consideration at the time of its passage, the bonds authorized by Section 53, and they undertook to say what bonds described in Section 53 shall not be subject to the provisions of Section 2835, and do not include in said list, bonds that are to be paid by general taxation. The bonds under discussion in this case are not to be paid by assessments specially levied upon abutting property, and, therefore, do not come within the provisions of this supplement.

I can not read this amendment, or, rather, supplement, in any other way than that it is an act by which the Legislature undertook to say just what part of the bonds contemplated by Section 53 should be relieved from the operation of Section 2835, and that it did not include bonds of the character that are here in controversy.

It, therefore, follows that the plaintiff is entitled to at least some of the relief prayed for in his petition, and that the temporary injunction heretofore granted should be continued in force, enjoining the defendant, the village of Rockford, its council and officials, from executing and delivering the bonds described in the petition, or from borrowing money to build the improvements described in the petition, until a fund for the payment thereof is provided, according to law; and that the contractors be enjoined, as prayed for in the petition, from carrying out their contracts until a fund is provided according to law to pay them; which, of course, can be done if the voters of said municipality, under statute, authorize it.

The court feels that all of the parties in this case ought to be protected, and the continuance of the temporary injunction in force is conditioned that the plaintiif shall furnish an undertaking, for the benefit of all the defendants, in the sum of $7,000 to the satisfaction of the clerk.  