
    The State ex rel. Manix v. Auditor of Darke County.
    
      Revised Statutes, sections 877 and 929 et seq. — ■Statutory construction — County commissioners — Power to rescind order directing county auditor to issue warrant on treasurer — Mandamus proper remedy to compel auditor to issue warrant.
    
    1. The provisions of section 877 Revised Statutes, requiring county commissioners to publish notice of their intention to purchase any lands or erect any building, do not apply to proceedings under section 929 et seg., for the purchase of lands for a children’s home.
    2. Where the commissioners of a county have, in conformity with the requirement of section 929 Bevised Statutes, formally accepted a proposition for the sale and conveyance of lands for the erection thereon of a children’s home, accepted a duly executed deed therefor, delivered the same to the recorder for record, taken possession of the land, allowed the purchase price and ordered the county auditor to draw his warrant on the county treasurer for the amount of it, they have no power, in the absence of fraud, imposition, or failure of consideration, to rescind such order and direct the auditor to withhold his warrant for the sum so allowed.
    3. The adoption by the commissioners, in such ease, of a resolution in form rescinding their former action, and directing the auditor to withhold his warrant, furnishes no excuse to such auditor for his refusal to draw his warrant on the treasury in obedience to the original order.
    4. A writ of mandamus is a proper remedy in such case to compel the auditor of the county to draw his warrant, in favor of the grantor of the land, for the amount of the purchase price, as allowed by the commissioners.
    5. The right to a writ of mandamus to enforce the performance of an official act by a public officer depends upon his legal duty and not upon his doubts; and where his duty is clear, its performance will not be excused by his doubts concerning it, however strong or honest they may be.
    Mandamus.
    This is a proceeding in mandamus to compel the auditor of Darke county to issue his warrant upon the treasury of that county in favor of the relator for the sum of $13,898.90, to pay for a site purchased from him by the commissioners of that county for a children’s home.
    The commissioners having taken the necessary steps therefor, a proposition to establish a children’s home, and to raise, by taxation, the sum of $25,000 for the purchase of a site and the erection thereon of suitable buildings, was adopted by the electors of Darke county, at the April election, 1882. *
    The tax was levied, and the entire amount was collected before the commencement of this proceeding.
    On November 8, 1883, a proposition of the relator to sell about 120 acres of his .farm at $115 per acre was accepted by the commissioners, and the further consideration of the proposition was postponed to November 28,1883, when the commissioners resolved to purchase 120T/7r acres of his farm, at $115 per acre, and that the same should be used as a site for the home. It was further “ ordered that on presentation of a deed for said lands by said George W. Manix, the auditor of said county issue an order on the county treasurer for said purchase-money of $13,898.90.”
    A deed duly executed was thereupon delivered by Manix to the commissioners, who accepted it in open session, and caused it to be left for record on the same day with the recorder of the county, who soon thereafter recorded it. Upon the delivery and acceptance of the deed, a further order was made reciting these facts, and directing the auditor to draw his warrant on the treasury for the agreed purchase price of the farm. By arrangement between the commissioners and the relator, the latter was to remain upon and care for the land so purchased until the commissioners should require actual possession of it, when it was to be wholly surrendered to the latter.
    No notice such as is required by section 877, Revised Statutes, was given by the commissioners of their intention to make the purchase.
    On December 3, 1883, and after the transactions above' recited, one member of the board of commissioners retired, upon the expiration of his term of office, and his successor was qualified and entered upon the duties of his office.
    On December 15, 1883, the board of commissioners, as then constituted, adopted a resolution in form rescinding, and for the purpose of rescinding, the resolutions of November 28th, purchasing the farm, locating the site, and ordering the auditor to draw his warrant.
    On November 28, 1883, after the commissioners had ordered the auditor to issue his warrant, as above stated, legal proceedings were commenced to enjoin the issuing thereof, which were pending until the May term of the district court of Darke county, 1884, when they were finally dismissed. ' After such dismissal, the relator demanded of the defendant that he issue his warrant according to the order of the commissioners, which was refused.
    In August, and again on September 4, 1884, the relator notified the defendant that on September 9,1884, he would apply for an alternative writ herein, and on the 10th of that month such writ was allowed and issued.
    On September 9, 1884, the commissioners purchased another tract of land as a site for a children’s home, for which they paid the money in December, 1884.
    The issues joined were tried upon the pleadings and evidence, and the facts admitted or found by the court, so far as they are considered in the opinion, are stated above.
    The defendant maintained :
    1. That the failure to give the notice required by section 877 Revised Statutes was fatal to the validity of the proceedings of the commissioners.
    2. That the commissioners had full power to pass the rescinding resolutions of December 15, 1883, and abandon the contract.
    3. That the relator is not entitled to this extraordinary writ of mandamus, but has an adequate remedy at law.
    
      H. J. Booth, George B. Obey, M. T. Allen, and Anderson $ Chenoweth, for relator.
    
      J. B. Knox and Meeker Bowman, for defendant.
   Owen, J.

I. The commissioners proceeded under section 929 Revised Statutes. This and the following sections to 950,inclusive, provide a complete scheme for the organization, management, and support of children’s homes. The requirement of section 929 that, before the submission of the question of the purchase of a site and the erection of buildings to the electors of the county, notice of such election shall be published four weeks in two or more newspapers of the county, was complied with.

Section 877 Revised Statutes provides that: “ Before the county commissioners purchase any lands, or erect any building or bridge, the expense of which exceeds one thousand dollars, they shall publish and circulate hand-bills, and publish in one or more newspapers of the county, notice of their intention to make such purchase, erect such building or bridge, and the location of the same, for at least four -consecutive weeks prior to the time that such purchase, building, or location is made; and they shall hear all petitions for, and remonstrances against, such proposed .purchase, location, or improvement (68 Ohio L. 103, § 19; 63 Ohio E. 32, § 2).”

The defendant maintains that the failure to'comply with the requirements of this section is fatal to the validity of the action of the commissioners, and a complete answer to the petition of the relator. It is conceded that the prpvisions embodied in this section by the revision of 1880, were originally limited to the purchase of lands for, and the erection thereon of, court-houses, jails, and county infirmaries, and the building of bridges. The act of which these provisions were a part related to this subject alone. The only change effected by the revision is that the words, “ as provided by this act,” which originally occurred between the words “ bridge ” and “ the expenses,” are omitted. It is contended that the codifying commissioners intended, by the omission of these words from the new section 877, to enlarge its operation. No such requirement of notice as is now found in this section was to be found in any of the provisions relating to children’s homes prior to the revision of 1880.

In Allen v. Russell, 39 Ohio St. 337, it is said : “ Where all the general statutes of a state, or all on a particular .subject, are revised and consolidated, there is a strong presumption that the same construction which the statutes received, or, if their interpretation had been called for, would certainly have received, before revision and consolidation, should be applied to the enactment in its revised and consolidated form, although the language may have been changed.” In Comm'rs v. Board of Public Works, Ibid. 632, it is said: “Particular and positive provisions of a prior act are not affected by a subsequent statute treating a subject in general terms, and not expressly contradicting the provisions of the prior act, unless such intention is clear.”

As the chapter in which section 877 is found was a compilation and consolidation of numerous acts, the retention of the words “ as required by this act” would have been an absurdity. Their omission is accounted for upon other grounds than that of an intention to extend the application of the requirements of this section to subjects not originally within its operation. There is no warrant for the conclusion that, by the mere omission of these words, it was intended to apply section 877 to the provisions relating to children’s homes, which have been brought into the revision, also, without substantial change from their original form.

II. Was the auditor excused from issuing his warrant by the resolution of December 15th, in form rescinding the former order directing him to issue his warrant for the agreed purchase price of the farm? That the power of the commissioners to make and execute the contract for the purchase of the land of the relator was ample, is unquestioned. No considerations of public policy, fraud, or abuse of discretion are shown to have intervened to impair or qualify this power.

Before the attempted rescission of their former action by the commissioners, the proposition of the relator to sell his land had been accepted. The deed was duly executed and delivered, accepted by the commissioners, and by them delivered to the recorder to be recorded. Substantially and practically, possession had been delivered to and accepted by the commissioners. They had ordered the auditor to draw his warrant upon the treasurer for the'amount of the purchase-money. When this order was made, the power of the commissioners over the public funds was exhausted. In fact, every thing which either party to the contract could do toward its execution was accomplished. The right of the relator to his purchase-money was then complete. It was a right growing out of a contract which the other contracting party had abundant authority to make. It was unaffected by any considerations of fraud, imposition, or failure of consideration. It was not in the power of the commissioners, by any act of theirs, to divest him of the right which had so vested in the relator, or to impair any of the contract rights or obligations which flowed from the transaction. This is practically conceded ; but it is maintained that the order directing the auditor to withhold his warrant impairs no contract right of the relator, but simply affects his remedy. This position is untenable. The order of the commissioners directing the auditor to draw his warrant on the treasurer in favor of the relator was the only means by which they could fully perform and execute the contract on their part. By this act their power over the subject of the contract was expended and the rights of the relator fixed. To recall or rescind their action in this behalf would be a substantial and serious interference with a most important contract right of the relator.

A statute of Indiana authorized the county commissioners to purchase a “tract of land” for an asylum for the poor. The board provided one tract, and then undertook to purchase another. It was held that, “wdien the board have .acted and provided a farm for the occupancy of the poor of the county, their legislative power on that subject is exhausted.” Hanna v. Comm’rs of Putnam Co., 29 Ind. 170. See, in support of the same general principle, Nelson v. Milford, 7 Pick. 18; Hall v. Holden, 116 Mass. 172; New Orleans v. Church of St. Louis, 11 La. An. 244 ; Appeal of Comm’rs, 57 Pa. St. 452 ; Western Sav. Fund Soc. v. Philadelphia, 31 Pa. St. 175; Indianapolis v. Indianapolis Gas Co., 66 Ind. 396; State v. Board of Education, 35 Ohio St. 368; State v. Hastings, 15 Wis. 75.

The case of Ex parte Black, 1 Ohio St. 30, is relied upon by the defendant as authority establishing the power of the commissioners to rescind their action ordering the auditor to issue his warrant in favor of the relator. The distinction between that case and the case at bar will be found, upon a thoughtful examination, to be marked. The commissioners of Hamilton county had, in pursuance of a special act authorizing it, entered into a contract with Milton H. and Alfred M. Cook, partners, for the erection of public buildings for the use of the county. After the Cooks bad made substantial progress with the work, two of the commissioners, acting for the board, and without the assent of the third, ordered all work suspended. Black, the relator, who was the third commissioner, applied to this court for a writ of mandamus to compel the board of commissioners to proceed with the work.

The Cooks were not complaining. The writ was refused. Thurman, J., said: “Let the validity of the contract be assumed for present purposes, what claim does it give the relator to the writ he seeks? If any individual right has been violated by its breach, it is the right of the Cooks, and they ask for no mandamus. Were they to do so, it would possibly be a sufficient answer to say that they have no right under the contract to auy specific thing; that their whole compensation is to be in money; and that an action at law would afford them a plain and adequate mode of redress. But it is unnecessary to say what we would do were they the relators. It is sufficient that Black has no right to prosecute for them. . . . But it is said that this is to sanction a repudiation of the contract by the commissioners. It is not so. It is only to say that mandamus is not the proper remedy.” Why mandamus was not the proper remedy in that case, will be considered in another part of this opinion. The case is strong authority for the proposition that, in the present case, the contract rights of the relator must be faithfully and fully respected. That the rights of the Cooks under the contract could be impaired by the action of the commissioners is expressly repudiated. In that case the contract was but part executed. In the case at bar each party had done all that was in his power to perform it.

If we concede the right and power of the commissioners to change or modify their established plan for the erection of a home, still, as the contract with Manix was within their authority, and was fully performed, the title to the land, which is admitted to be good, became vested in the county, and they were clothed with abundant capacity to convey it to any person and appropriate its proceeds to the purposes of a home. Taylor v. Binford, 37 Ohio St. 262. But no facts have been made to appear upon this hearing, which justified the commissioners in the attempt to revoke or rescind the acts which they had done in performance of their contract.

In The State v. Com’rs of Henry County, 31 Ohio St. 211, the defendants, under the authority of a special act, levied and collected part of the taxes necessary for the building of a bridge. They then abandoned the purpose of building the bridge, and declined to make further levies. It was held that they will not be compelled by mandamus, at the suit of tax-payers, to build the bridge or make further levies for that purpose. The soundness of this case and of Ex parte Black, supra, are unquestioned. But let it be supposed that, in either case, a contractor had performed his contract, and the commissioners had allowed him his stipulated compensation, and directed the auditor to draw his warrant ’ therefor, would it be claimed that the power to suspend or abandon the prosecution of the work involved the right to rescind or revoke their allowance to the contractor and direction to the auditor? Surely, a proposition so at war with the inviolability of contract obligations will not be seriously contended for. If we are right in this conclusion, it follows that the commissioners could not impair the plaintiff’s rights by the purchase of other lauds for the purposes of a home.

III. Is mandamus the proper remedy?

In Ex parte Black, supra, it is very clear that mandamus Would not lie in favor of the Cooks. Their claim was one for money, and the amount was unascertained. If their claim had been ascertained by a judgment of court or allowance of the commissioners, it would have become the plain duty of the auditor to issue his warrant for the amount; and upon his refusal, mandamus would have been the appropriate remedy to compel him. Section 1021 Revised Statutes. The Comm’rs of Putnam County v. Auditor of Allen Co., 1 Ohio St. 322, is relied upon to sustain the position of defendant. In that case it was held that: “ Mandamus will not lie to compel the auditor of a county to draw an order on the county treasurer where the auditor has not the right to fix the amount to be drawn for, unless such amount has been ascertained and liquidated.” Caldwell, J., says: “ If the amount were fixed in the mode contemplated in the statute, or if it were liquidated by judgment, mandamus would be the proper remedy to compel the auditor to perform the ministerial act. of drawing the order; but until the amount is thus liquidated, we think the auditor can not be compelled to act; the time for his action has not arrived.”

It seems very clear that if an action at law would lie against the county for the agreed purchase price of the land, the only effect of such a proceeding would be to fix or determine the amount to which the relator is entitled. This has already been accomplished. After such a judgment it would still remain for the auditor to draw his warrant for the amount of it. Upon his refusal mandamus would clearly lie to compel his action. Such a proceeding would seem vain and idle. If the relator should invoke the remedy of specific performance, the commissioners could answer that they had already fully performed the contract on their part; and such answer would be abundantly sustained by the facts.

The defendant urges that another remedy for the relator is to apply for an order against the board of commissioners to vacate the entry of December 15th. If this entry was authorized, it is not easy to see how a court could order its vacation. If, on the other hand, it was unauthorized, it furnishes no excuse to the auditor for his refusal to obey the command of the first order.

It is not enough that the auditor may honestly entertain doubts concerning the propriety of the original order or the effect of the order of rescission. The light to a writ of mandamus to enforce the performance of an official act by a public officer depends upon his legal duty and not upon his doubts. Ryan v. Hoffman, 26 Ohio St. 109. If his duty is clear, its performance will not be excused by his doubts concerning it, however strong or honest they may be. It is not doubted that it is competent for an auditor to defend against an application for mandamus to compel him to issue his warrant on the treasurer upon an allowance and order of the commissioners, by showing that the order was wholly unauthorized, and that the commissioners had no authority to make it. State v. Yeatman, 22 Ohio St. 546. It is enough to say that in the present case no fact is shown which impeaches the original order of the commissioners or excuses the auditor from obeying its command. His duty to draw his warrant in favor of the relator is clear.

That mandamus is the proper remedy to compel the performance of that duty is abundantly established by authority. Commissioners of Putnam Co. v. Auditor of Allen Co., supra; Ryan v. Hoffman, supra; Smith v. Comm’rs, 9 Ohio, 26 ; State v. Burgoyne, 7 Ohio St. 153; Comm’rs v. Hunt, 33 Ohio St. 169 ; State v. Board of Education, 35 Ohio St. 368; State v. Wilson, 17 Wis. 687, 694; State v. Auditor of Delaware County, 39 Ind. 272.

“ The drawing of a warrant for the payment of a demand or claim, which had been duly audited and allowed by the proper authority, is regarded as a duty of a purely ministerial nature, and hence properly falling within the scope of mandamus. And wherever the demand has been definitely ascertained as prescribed by law, and the duty is plainly incumbent by law upon a particular officer of drawing his warrant upon the treasury for the amount due, a refusal to perform this duty will warrant the interposition of the courts by mandamus.” High Ex. Rem., § 104.

IY. Other defenses were relied upon by the defendant, but as they rested upon averments of fact which the proofs failed to establish, they are not considered in this opinion.

Peremptory writ awarded.

McIlvaine, C. J.,

dissenting. For my present purpose, in dissenting from the judgment of the court, I will concede the facts to be as claimed by the relator, which is conceding more, I think, than the testimony shows. The case may, therefore, be stated thus: The board of commissioners of

Darke county purchased of the relator a farm for the use of the county, as it was authorized to do. The relator executed and delivered to the commissioners in due form a deed of conveyance therefor. The board of commissioners accepted the deed, and thereupon directed the auditor of the county to draw a warrant in favor of the relator on the treasurer of the county for the amount of the purchase-money.

Before the warrant was drawn by the auditor, the board of commissioners assumed to revoke the authority of the auditor to draw it. After the authority to draw a warrant was revoked, and the revocation was entered on the journal of the commissioners, the auditor, on demand, refused to draw the warrant in favor of the relator, and thereupon this proceeding was commenced to compel the auditor, by mandamus, to draw the warrant.

It is conceded that the auditor, without authority from the commissioners, had no power to draw the warrant. It therefore follows, that a controlling question in this case is as to the power of the commissioners to revoke the authority of the auditor to draw the warrant. That it has been revoked, if the board of commissioners had the power of revocation, is not disputed.

. It is true that between the date that the order to draw was given to the auditor and the date that it was revoked, the term of office of one of the commissioners had expired and his successor had been qualified, but it appears to me so palpably plain that the power of the board was not thereby controlled, that the fact has received all the attention it deserves, iu the mere statement of it.

As to the power of the commissioners to revoke the order granting authority to the auditor to draw a warrant on the treasurer, although it is not given in express terms by the statute, is nevertheless necessarily implied from the nature of the powers granted — the power to purchase. Let us suppose that after the order on the auditor to draw, as iu this case, the board of commissioners had discovered that the relator’s title was worthless, or that the premises were subject to liens, who could doubt the power or propriety of the purchaser to stop the payment of the purchase-money ? If the purchaser were a natural person, surely no one would doubt the power. Every reason for its implied existence is present when the purchaser is a public agent, using public funds in making the purchase. In such case the existence of the power is essential to prevent public loss.

I admit that the exercise of such power may be abused, but this admission does not imply that the power does not exist. But I do deny that the auditor is the judge to determine whether the power is properly or improperly used in any given ease.

If the power of revocation in this case has been improperly used by the board of commissioners, the courts are open to redress, in the due and ordinary course of law, ariy wrong which the relator has suffered. But to my mind, a plain duty under the law does not rest upon the auditor to draw his warrant upon the treasurer for the payment of the purchase-money which may or may not be due the relator. And unless the duty of the auditor to do so be plain, this proceeding should be dismissed.

I -wish also to express my unqualified dissent to the proposition that the right of the relator to demand and receive the purchase price of this sale is res adjudieata — that the order of the commissioners upon the auditor to draw a warrant on the treasurer therefor in favor of relator has the force and effect of a judgment at law, which can not be collaterally impeached or modified by the commisioners after the term at which it was made. I deny that the order of the board of commissioners has any such force and effect. Instead of acting judicially in the matter, it was simply acting as a contracting party, not in making, but in executing the contract. And the order of revocation was not a rescission of the contract, but a refusal to execute it. If the right of the auditor to pass upon grounds of revocation did not exist, the ground upon which the revocation was made is immaterial in this action.

Johnson, J., concurred in the dissenting opinion.  