
    MUNICIPAL CORPORATIONS — INJUNCTION — PARTIES — LIBRARIES.
    [Warren (1st) Circuit Court,
    July, 1904.]
    Giffen, Jelke and Swing, JJ.
    Malinda Pullen v. John E. Smith et al.
    1. Resolution to Maintain Carnegie Library Within Inhibition of Burns Law.
    A resolution of a municipal council to maintain a free public library at a cost of not less than $1,000 a year, and to procure a suitable site therefor, which is responsive to the proposition of a private party to donate $10,000 to erect the library building, is a resolution involving the expenditure of public money, and is within the inhibition of See. 1536-205 Rev. Stat. (Sec. 45 Mun. Code) unless the certificate of the proper municipal officer that the money required therefor is in the city treasury to the credit of the proper fund is filed and immediately recorded.
    2. Taxpayer may Enjoin Unlawful Contract Under Sec. 1536-668 Rev. Stat., When.
    An action to enjoin the unlawful expenditure of public funds must be brought by the duly appointed legal officer of the municipality, as provided by Sec. 1777 (1536-667, 4 ed.) Rev. Stat., unless such officer has, upon due request of a taxpayer of the municipality, failed to do so, in which event such taxpayer may, under favor of Sec. 1778 (1536-668, 4 ed.) Rev. Stat. maintain the action on behalf of the corporation.
    Runyan & Stanley, for plaintiff.
    J. E. Smith, J. Morrow and W. C. Maple, contra.
   JELKE, J.

We find [in the cases, Malinda Pullen v. John E. Smith and William Evans v. John E. Smith] that the proposed use of the lot involved herein as the site for a public library is within the public and municipal use intended by the original donors of said lot:

A more serious question, however, is presented in the contention made by Mr. Evans, as a taxpayer, that the resolution passed by the Lebanon council, on July 7, 1903, contravenes the Burns law. Section 1536-205 Rev. Stat., 96 O. L. 37, Sec. 45. The issue thus arises: Mr. Carnegie made a proposition to the village of Lebanon in the following letter:

“2 East 91st St., New York, February 20, 1903.
“ W. Chester Maple, Esq., Lebanon, Ohio.
“Dear Sir:
“Responding to your communication in behalf of Lebanon. If the city agree, by resolution of council, to maintain a free public library at a cost of not less than one thousand dollars a year and provide a suitable site for the building, Mr. Carnegie will be pleased to furnish ten thousand dollars to erect a free public library building for Lebanon. 1
“Respectfully yours,
“Tas. Babtbam, Private Secretary.”

Which offer is.met by action of the Lebanon council on July 7, 1903, by the following resolution:

“Resolved, by the council of the village of Lebanon, state of Ohio, that the offer of Mr. Andrew Carnegie, made February 20, 1903, to furnish ten thousand dollars to erect a free public library, building for Lebanon is hereby accepted; and
“Resolved, Further, that the council agrees for and on behalf of said village to maintain said free public library at a cost of not less than one thousand dolars a year, and to provide a suitable site for the same; be it further
“Resolved, That we express to Andrew Carnegie the sincere gratitude of the village for this beneficent gift, and that the clerk is directed to transmit to said donor a copy of these resolutions, with a request for directions to this council for further mode of procedure.”

Section 1536-205 Rev. Stat. provides:

“No contract, agreement or other obligation involving the expenditure of money shall be entered into, nor shall any ordinance, resolution or order for the expenditure of money, be passed by the council or by any board or officer of a municipal corporation, unless the auditor of the corporation, and if there is no auditor, the clerk thereof, shall first certify to council that the money required for the contract, agreement or other obligation, or to pay the appropriation or expenditure, is in the treasury to the credit of the fund from which it is to be drawn, and npt appropriated for any other purpose, which certificate shall be filed and immediately recorded.”

It is contended on behalf of the library trustees, and it was decided. by the court below, that the resolution did not contravene the inhibition of this section of the statutes for two reasons: First, that it did not create an enforcible legal obligation against the village of Lebanon; and, second, that it was not an expenditure of money. It is admitted that the resolution of July 7 has not the binding force and effect of a contract, and it is said that it merely expresses the municipal sense, of policy'and has no binding effect upon subsequent councils; that it is only binding upon the moral sense and civic conscience of the citizens of Lebanon. This view of the resolution is taken by both sides of the controversy,-and that its provisions will be religiously kept, is asserted by both sides. _ !

We do not yield to.counsel or to anybody, in high appreciation of the conscience and sense of moral responsibility of the good citizens of Lebanon, but we take a view a little different from that entertained by the trustees and their counsel as to the time for its exercise.

There is no doubt but that, were it not for Sec. 1536-205 Rev. Stat., the letter of Mr. Carnegie and the resolution of council would constitute .an enforcible bilateral legal agreement,' and it is only because of this section of the statutes that it does not become such. The action of council purports to do that which the law says it cannot do, and it is because the law says that it cannot do this, that council should not go through •the form of doing, in good faith, a thing which is empty and vain. It is because such action, on its face, is committing the village of Lebanon to an unlawful position that council should not do it. Would it not be fairer and juster if the village of Lebanon said to Mr. Carnegie:

“We appreciate your kind offer and desire to avail ourselves of its beneficent provisions, and feel sure that the people of Lebanon, through their municipal officers, hereafter will keep the conditions imposed, but under the law we are powerless to commit the village to the conditions ■asked; but to the extent that it is declaratory of the public sense and policy of this municipality, we are willing to do so. We can, lawfully, go no farther. >'

To say that this action of council does not contravene this provision of the statutes, because such action of council is made invalid by this ■same section, is reasoning in a circle. And if this were sufficient answer to the objection, it would be a universal answer to all objections to actions by municipal councils not in accordance with this statutory provision, the very object of which statutory provision is to prevent such action by councils. It is to restrain municipal councils from purporting ■or pretending to do that which they are powerless to do, that such actions are enjoined.

It was held in the case of Elyria Gas & Water Co. v. Elyria (City), 57 Ohio St. 374, 375 [49 N. E. Rep. 335] :

“Where the proceedings of a municipal corporation are unauthorized and void, either for want of power or its unlawful exercise, and are ■designed to raise a fund by the sale of its bonds or by taxation to be applied to the object contemplated by the proceedings, a suit to enjoin them may be brought by a taxpayer, under Secs. 1777, 1778 Rev. Stat., without waiting until the fund is raised ready for expenditure. The ■abuse of corporate powers, within the purview of Sec. 1777, includes'the unlawful exercise- of powers possessed by the corporation, as well as the assumption of power not conferred.” .

Further, it will not do to say that this action does not involve the expenditure of money. If it does not do that, it does nothing else, and is meaningless. That is all that Mr. Carnegie asks. It is not in itself the expending of money, like an ordinance to pay, but the statute goes further; it provides against “a resolution involving the expenditure of money.” It is the initial step, which, if logically and consistently followed up, will inevitably result in the expending of public funds. It was held by the sixth circuit, in the case of Rhoades v. Toledo (City), 3 Circ. Dec. 325 (6 R. 9):

“A municipal ordinance, providing for the condemnation of private property for street purposes, is an ordinance for the expenditure of money within the meaning of Sec. 2702 Rev. Stat., and it is essential to the validity, of such ordinance that the city auditor duly make and file the certificate required by said section.”

This decision is based upon the case of Ryan v. Hoffman, 26 Ohio St. 109, 123:

“The ordinance condemning the land in question, is an ordinance for the expenditure of money.”

The circuit court for the second circuit, in the case of Tyler v. Columbus (City), 3 Circ. Dec. 427 (6 R. 224), takes a somewhat different view, for two reasons: First, that the money expended was to be as-, sessed back on the property, and therefore was not an expenditure of public money; and, second, that the sum was uncertain and indeterminate until after condemnation proceedings were had before a jury, neither of which criticisms apply to the expenditure contemplated, and the initial step of which has already been taken in the case at bar. It is idle and not frank to say that this resolution does anything other than involve the expenditure of money, and this is admitted by everybody when they talk about a moral obligation.

There is, however, an objection to the maintenance of this taxpayer’s suit which has not been raised by counsel for the defendants, and that is, that the suit is not brought under Sec. 1536-667 Rev. Stat. by the duly appointed legal officer of the municipality, nor is there an allegation that request had been made upon such officer, and that he has failed so to do as provided by Sec. 1536-668 Rev. Stat.

Notwithstanding this defect in the proceedings, which is probably fatal, and will necessitate a new suit if the objection is urged, we have thought it best to decide the questions submitted as, after all, that is what counsel and the citizens of Lebanon want.

We are of opinion that the action by the council of the village-of Lebanon is invalid and void, and that the trustees of the said library cannot proceed in reliance thereupon, and therefore should be enjoined.

We trust and believe that if this matter is put to the donor in its right light, that his gift may still be secured to the village of Lebanon. As it is, the matter cannot proceed further on its present basis.

Giffen and Swing, JJ., concur.  