
    City of Cincinnati v. Holmes, Adm’r, et al.
    
      Conflict of laws — Later statute incompatible with earlier — Later regarded as exception to former — Act of May 4, 1891, not invalidated by section 2702 Rev. Stat. — Burns law.
    
    1. Where the general provisions of a statute and those of a later one on the same subject are incompatible, the provisions of the latter statute must be read as an exception to the provisions of the earlier statute.
    2. The provisions of sec. 2702, Revised Statutes, known as the Burns law, do not apply to the act passed May 4, 1891 (88 Laws, 527), authorizing villages of a certain class to make certain street improvements, and defray the costs and expenses thereof by issuing bonds and levying taxes and assessments as therein, provided; and, therefore, a contract made with the village for the performance of the wtirk, before any of the money is in the treasury is not, for such reason, void.
    (Decided March 9, 1897.)
    Error to the Circuit Court of Hamilton county.
    The suit below was brought by the village of Avondale upon ‘ £an agreement' and guaranty in writing, signed by William Holmes and William B. Burnet, dated May 4, 1891, addressed to the mayor and council of the village of Avondale, that James G. Piolines, then in life, would enter into an agreement and faithfully perform the terms of a. proposal submitted by him for the construction of a proposed improvement of a certain avenue of the village, for which bids had been solicited by advertisement. The village has since been annexed to the city of Cincinnati, and it now prosecutes the suit as the successor to the rights of the village.
    The proceedings for the improvement were had tinder the provisions of two statutes passed respectively April 15, 1890 (87 Laws, 201), and May 4, 1891), (88 Laws, 527); the validity of which acts have been heretofore affirmed by this court.
    In accordance with the requirement of the advertisement for competitive bids James G. Holmes filed with his proposal the written agreement of William Holmes and William B. Burnet, that if he should refuse to execute tlye contract in accordance with his proposal, should it be awarded him, they would ‘ ‘pay to the village of Avondale any difference between the sum that he would be entitled to on its completion and that which the corporation may be obliged to pay to the person. or persons to whom the contract may be awarded at this or any subsequent time. ” Holmes was found to be the lowest bidder, and the contract was awarded to him; but, after due notice, he refused to enter into the contract, and the work was relet to one Sullivan for some $22,000 more than the bid of Holmes, which sum the village was compelled to pay and did pay for the construction of the improvement over and above the proposal of Holmes.
    Issues were made up and tried to the common pleas judge, a jury being waived. The court found for the plaintiff and rendered judgment in its favor for the sum of $22,134.79. A bill of exceptions was taken and error prosecuted to the circuit court, on various assignments of error.
    The circuit court reversed the judgment for the following reasons alone:
    “That at the time the contract for the improvement of that portion of Main avenue set forth in the petition herein was awarded to James G. Holmes, the plaintiff in error, by the council of the village of Avondale, there was not in the treasury of said village, and never had been, and was not in said treasury at the time that it was demanded of the plaintiff in error by the council of said village that he enter into said contract, money sufficient to pay said James G. Holmes for said proposed improvement, or for any portion thereof, and for the further reason that the clerk of said village, at the time of said award, failed to certify to said council that the money to be required for carrying out said contract was in the treasury to the credit of the fund for the improvement of said portion of Main avenue and not appropriated for any other purpose, and that the said clerk never did so certify.”
    Error is now prosecuted in this court to reverse the judgment of the circuit court, and affirm that of the common pleas.
    
      Frederick Hertenstein, Corporation Counsel; A. BIluston and J. W. Warrington, for plaintiff in error.
    I. No duty had arisen, even if one would ever arise, to have and certify to the presence of money in the treasury. Revised Statutes, sections 2303, 2702; Hughes v. Village of Glyde, 41 Ohio St., 339; Commissioners v. Rhodes, 26 Ohio St., 411; State ex rel v. Commissioners, 1 O. C. C. Rep., 194.
    II. Holmes waived the protection of the Burns law, even if he was ever entitled to it. Smith v.' Roe, 7 Col., 95; Sinnot v. Mullin, 82 Pa. St., 333; Addison on Tort, 913.
    The principle here announced is laid down in all the text-books on contracts, and in numerous adjudicated eases. State ex rel v. Commissioners, 26 Ohio St., 531; Reilly v. Neto York City, 18 N. E., 623.
    III. The acts under which the improvement was made were outside of the intent and scope of section 2702 and an exception to it. Elster v. Springfield, 49 Ohio St., 82;' State v. Hoffman, 25 Ohio St., 333; Cincinnati v. McErlane, 3 W. L. B., 843; Clark on behalf of City of Columbus v. Columbus et al., 23 W. L. B., 290; Wilson v. Cincinnati, 19 W. L. B., 10; Cincinnati v. Ilonningford, 32 W. L. B., 32; Tyler v. Columbus, 6 O. C. C. Rep., 224; YAe Lima Gas Co v. Lima, 4 O. C. C. Rep., 22.
    With these authorities in view touching the purpose and scope of the cash system as distinguished from the credit system, it would seem plain that wherever a statute is enacted expressly authorizing a municipality to go into debt for special objects, both the reason and application of the cash system cease. liCessante rations cessai ipsa lex.” Indeed, the inevitable effect of vesting power to incur a debt for a special object, is to restore the credit system pro tanto.
    
    The acts of April 15,1890 (87 O. L., 201) and May 4, 1891 (88 O. L., 527), which, apart from the methods of classification, are the same, show that the intent was to accomplish an extraordinary municipal purpose. It was to enable certain villages of a specified class and vocation “to make more durable street improvements than have -heretofore been made therein.” In order to pay for these unusual improvements, the fourth paragraph of the act expressly authorized the villages to £o into debt. That debt .was to be an interest-bearing obligation.
    It follows, as it seems to us, that the true interpretation of the Burns law in connection with the improvement acts in question, is that the former must be regarded as a mere general law not intended to affect statutes passed to accomplish special objects like those in question. In other words, the special statutes must be treated as an exception to the general statutes; for otherwise their inconsistent provisions work a hardship upon the taxpayers for whose benefit and protection the legislation as a whole was obviously designed. HoeyY. Gilroy, 129 N. Y., 132; The Dean etc. of Ely v. Bliss, 5 Beav., 574; Commissioners v. Mg Comb., 19 Ohio St., 345; The State v. Newton, 26-Ohio St., 200.
    Is it possible that the embarassment and delay of the state’s litigation, or even “the detriment of the state,” could be a sufficient reason for requiring the provision of the general statute in that case to yield to that of the special statute, and yet that an unnecessary burden upon taxpayers is not a sufficient reason for requiring the general provisions of the Burns law to yield to the special provisions of the improvement acts in question? It seems to us that there are more cogent reasons for making1 the general statute here yield to the special acts5 than there were in the case cited. Th e State v. Jackson, 36 Ohio St., 291: Brig el v. Starbuck, 34 Ohio St., 280; ToionsendY. Little 109 U. S. 504; Lsham v. Bennington Iron Co., 19 Vt., 240.
    
      L. W. Goss, for defendant in error.
    In general, the powers of municipal corporations are purely statutory. Vol 15 Am. & Eng. Ency. of Law, 1039; Gallia County v. Holcomb, 7 Ohio., 232, pt. 1; Bank v. Chillicothe, 7 Ohio., 31, pt. 2; MaySY. Cincinnati, 1 Ohio St., 268; Walker v. Cincinnati, O. St. 14, and Bloom v. Xenia, 32 Ohio St., 461.
    That such powers are strictly construed, see Am. & Eng. Enc. of Law, vol. 15, p. 1041, and citations, note 2. Collins v. Hatch, 18 Ohio, 523; Ravenna v. Pennsylvania Co., 45 Ohio St., 118; Cooley’s Constitutional Limitations, 233; Minium v. Larue, 23 How. 435; Bloom v. Xenia, 32 Ohio St. .465. Section 2702, Revised Statutes of Ohio.
    And yet, the argument in this case for plaintiff in error is that 2702 meant simply to prevent municipalities from borrowing money, and therefore, when an act itself authorized the issuing- of bonds and borrowing of money, such section was inapplicable.
    The cases cited in subdivision three (3), brief for plaintiff in error, when examined, sustain the contention on behalf of defendants in error herein.
    This question was argued to the court of common pleas and in the circuit court of Hamilton county, Ohio, in Beig & Marty v. The Village of St. Bernard, these courts holding that although the special act allowed the villag-e of St. Bernard to issue and sell bonds and to apply the proceeds to build a town hall, it could make no contract under the act until the money was in the treasury, and so certified by the clerk. These holdings were affirmed by the supreme court of Ohio: Beig <& Marty v. Village of St. Bernard, 33 W. L. B., 36.
    The supeme court had before that, in the ease of Bister v. Springfield, 49 Ohio St., 100, cited for another purpose by plaintiff in error, clearly giving its interpretation of section 2702.
    No law and no court require a man to do a vain thing. Had Holmes signed the so-called contract, section 2702 being applicable, he would simply have signed nothing; the supposed contract would have been void, not voidable, but, in the language of the court in the 2d C. C., absolutely void.
    He could not have enforced it against the village any more than the village could have enforced it against him.
    
      The village must have been in a position so that nothing more was to have been done, by it and Holmes, than to sign a contract which would have been binding upon both parties. Dansen v. Johnson,, 13 N. J. L., 264; Kohn v. Man. R. R. Co., 60 N.Y., 34; Nathan v. Lewis, 1 Handy, 242; Lawler v. Burke, 7 Ohio St., 340; Delaware Oounty v. Andreios, 18 Ohio St., 49; Bd. ofJEn. v. Thompson, 33 Ohio St., 328.
    Why enter then into a labored argument to show that a special act does not repeal provisions of the general statutes, when the special statutes provide for continuing- the g’eneral statutes in force?
    This language was possibly unnecessary; without it, section 2702, not having been repealed, having been left in full force and effect, would have controlled.
    It seems to have been placed there simply by way of emphasis, in ease any one should raise a doubt on the subject. The Germania Fire Ins. Co. v. Henry Roost, 55 Ohio St., 581; Bond\. Village of Madisonville, 2 C. C. Rep., 449; Drottv. Riverside, 4 C. C. Rep., 312; Ohio ecorel. v. Hoffman, Auditor,.25 Ohio St., 328.
    If losses have occurred to the Village of Avon-dale or its successor, the plaintiff in error herein, let them look to the clerk of the village or other authorities who brought about the conditions found in this case.
   Minshall, J.

The principal and only question in the case is, whether what is known as the Burns law, section 2702, Revised Statutes, is applicable to the improvements authorized by the acts of the legislature under which the village of Avondale proceeded in this case. If so, the judgment should be affirmed; otherwise, it should be reversed, and that of the common pleas affirmed, for we see no other reason in the record for which the judgment of the latter should have been reversed. After a careful consideration of the question we are satisfied that the circuit court erred. The proceedings for the improvement were taken under the statutes referred to in the statement, and the village of Avondale is within the statutes. There is no ground for saying that their provisions were not complied with in every respect, unless the Burns law applies to improvements made under these statutes. It is claimed 'that it does, and is made to apply by the following clause in the act of 1891: “And the provisions of the statutes in relation to authorizing and making street improvements, levying and collecting taxes and assessments therefor, and the limitations imposed, and in so far as said provisions are applicable, except as modified by this act, shall govern and control the council and lot owners in respect to such improvements.” This provision has many subjects for application that are consistent with the statute without making it necessarily include the provisions of section 2702; and it should be observed, that the “limitations imposed” by the general statutes are to apply only so far as they are “applicable,” and not “modified by this act.”

Are, then, the provisions of this section applicable. Omitting some of the verbiage, it is as follows:

“No contract, agreement or other obligation involving the expenditure of money shall be entered into, nor shall any ordinance, resolution or order for the appropriation or expenditure of money, be passed by the council or by an3T board or officer of a municipal corporation, unless the * * * clerk thereof shall first certify 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 not appropriated for any other purpose, * * * and all contracts, agreements or other obligations, and all ordinances, resolutions and orders entered into or passed contrary to the provisions of this section shall be void ; * * * 11

It will be observed that, under the statute, when the requisite number of owners, of the feet front of a proposed improvement petition the commissioners, and they have made an investigation, adopted a grade and plan, ascertained the probable cost, and recommended the making of the improvement, “the council shall order the same to be made.” These acts, particularly the order of the council, that the improvement be made, fixes an indebtedness for the entire cost of the improvement, one-half as an assessment on the property benefited and the other half on the general taxpayers of the village. It is against the fixing of an indebtedness on the corporation without the money being in the treasury to meet it, that the Burns law is designed as a protection. Hence, it cannot apply to the act in question, for it would prohibit the council from making the order that the improvement be made — if not all the initiatory steps required by the law. How could any action be taken for the issue of bonds under the fourth clause of the section, until the order for the improvement had been made; and yet, if the Burns law is applicable, this order cannot be made until the money from the bonds and assessments are in the treasury. It may be said that the indebtedness is not created until a contract for the improvement is made. It is true that it does not exist in favor of any particular creditor, nevertheless, on making the order the successive steps' — the advertisement for bids, action on them, the letting of the work and making of the required contract — all follow as a necessary sequence under the statute. If the council should refuse to take any of these steps without cause, it could be compelled by mandamus to do so. Hence, if the Burns law can have any application to this statute, according to its spirit it must apply to the order of the council that the improvement be made. It is this order that fixes and entails the indebtedness upon the corporation. It is in fact an order for the expend-i ture of money. Therefore the Burns law cannot apply to this statute as it would render the statute nugatory. The plain purpose of the Burns law was to prevent the incurring of an indebtedness by ■ a municipal corporation beyond the ordinary resources of its revenue and whereby an annual excess of indebtedness will be created over these revenues. But it has not the vigor of a constitutional provision, and cannot therefore apply to a statute that not only authorizes the making of a particular kind of improvement, but also provides the mode and manner in which the funds are to be raised to defray the costs and expense of it. Under this statute the burden of the taxpayer will neither be increased nor diminished. . by the time when the contract is let for the work of the improvement. The making of the contract has reference, for its performance on the part of the village, to a fund to be raised by taxation and assessment, authorized by the act for the particular purpose, and which can be applied to no other. These considerations show the inapplicability of the Burns law to improvements made under a statute like the one in question. Where a contract is made to be discharged from a general fund, that may be applied to a variety of purposes, more obligations may be incurred by way of anticipation than can be discharged from it, thus causing’ an annual deficit, to meet which increased taxation must be resorted to. Hence the wisdom of the Burns law, which in such cases, requires that the money must be in the treasury, applicable to the particular expenditure before it is made. Here, however, the fund to be raised is appropriated by the statute to a particular improvement; and all taxation and assessment authorized^ must be limited to the costs and expenses of the improvement. All the limitations in this regard are in the statute. The bonds to be issued shall not exceed twelve and a half per centum of the total tax valuation of the property of the village; shall be made payable in thirty years and bear interest at a rate not to exceed four per centum.

It is a rule constantly observed in the construction of statutes, that where the general provisions of a statute conflict with the more specific provisions of another, or are incompatible with its provisions, the latter is to be read as an exception to the former. Thus in State ex rel. v. McGregor, 44 Ohio St., 628, 631, it was held that the provisions of section 1208, Revised Statutes, providing that a vacancy in the office of sheriff should be filled by appointment for the unexpired term, should be be read as an exception to the general provisions of section 11, Revised Statutes, requiring vacancies in elective offices to be filled by election at the next proper election, occurring more than thirty days after the vacancy happens. In The Dean of Ely v. Bliss, 5 Beav., 574, 582, it is said: “That if two inconsistent acts be passed at different times, the last is to be observed, and if obedience cannot be observed without derogating from the first, it is the first that must give way. Every act of parliament must be considered with reference to the law subsisting when it came into operation and when it is to' be applied; it cannot otherwise be rationally construed.' Every act is made either for the purpose of making’ a change in the law, or for the purpose of better - declaring the law, and its operation is not to be impeded by the mere fact that it is inconsistent with some previous enactment. ’ ’ This ease was cited and approved in Knox County v. McComb, 19 Ohio St., 345; and has been frequently applied in this state. In Isham v. Bennington Iron Co., 19 Vermont, 240, Redfield, J., said: ‘ ‘I know of no rule of construction of statutes of more uniform application than that later or more specific statutes do, as-a general rule, supersede former and more general statutes, so far as the new and specific provisions go.”-

If then the Burns law were not specifically excluded from application to this act, which we think it is, by the language, “in so far as said provisions are applicable, except as modified by this act,” still, being incompatible with its provisions, it does not apply, and the latter statute must be read as an exception to it.

Judgment reversed and common pleas affi/rmed.  