
    The State, ex rel. Stanton, v. Andrews et al.
    
      County commissioners — Erection of buildings — Limitation of expenditure — Sections 2333 and 5638, General Code — Particular statutes as exceptions to general provisions — Borrowing money to erect county jail — Section 21$h, General Code— Statutes in pari materia — Bond issue approved by electors— Expenditure by building commission limited, when.
    
    1. Sections 2333 and 5638, General Code, are sections of general limitation on the power of county commissioners to levy a tax, appropriate money, or issue bonds for the purpose of building county buildings, and are subject to a strict construction for the purpose of confining their operation within the limitations expressed.
    2. A statute in order to he held an exception to the general •provisions of another conferring power and limitation of power on an administrative board, must be couched in language so clear and unambiguous as to be free from doubt as'to the intent of the legislature in declaring it to-be an exception.
    3. The language employed by the legislature in Section 2434, General Code, authorizing county commissioners to borrow money for the erection of a county jail, may not bé construed as an exception to the limitation on its powers provided in Sections 2333 and 5638, General Code, but must be construed in pari materia with those sections.
    4. When the voters of a county sanction the policy of building a county jail by voting a bond issue in an amount certain, the policy adopted is one involving the expenditure of no greater sum than that approved, and a building commission is without power to contract for such building under its adopted policy and plan involving an estimated expendi- . ture of an amount in excess of that sanctioned by the voters.
    (No. 17232
    Decided July 5, 1922.)
    Error to the Court of Appeals of Cuyahoga county.
    
      This action comes into this court for review upon the record from the court of appeals of Cuyahoga county. It was brought originally by the state, on the relation of Edward C. Stanton, the prosecuting attorney of the county, against the county commissioners, a building commission duly appointed for the purpose of building a county jail in Cuyahoga county, and the auditor and treasurer of Cuyahoga county.
    Both the lower courts denied the relief prayed for, and entered judgment in favor of the defendants and against the state on relation of the prosecuting attorney.
    By an examination of the record it appears that the clerk of court as well as the trial judge failed to sign a bill of exceptions; therefore in its present state the record does not include a bill and is confined to the pleadings, to-wit, a petition, the answer of the building commission, and the reply thereto.
    The petition seeks to enjoin the Cuyahoga county building commission from entering into any contracts and agreements, or from expending any public funds in connection with the construction of any public buildings, under plans and specifications involving the expenditure of more than the aggregate sum of $1,250,000, and the auditor and treasurer from issuing any warrants for the payment of any public funds, at the order of the county building commission, in the construction of any public building, under plans and specifications involving the expenditure of more than the aggregate sum of $1,250,-000, and prays for such other and further relief as the relator may be entitled to in equity.
    
      The petition alleges that on August 27, 1917, the county commissioners adopted a resolution declaring it necessary to erect a building for a county jail, including court-rooms for the insolvency and criminal courts, and accommodations for the prosecuting attorney’s office, and for such purposes to expend funds in the sum of $1,250,000; that the question of , the policy of making such expenditure for that purpose was submitted to the voters of the county at the general election; that the voters approved the policy by voting “in favor of the expenditure of one million two hundred and fifty thousand dollars ($1,250,000) for the purpose of erecting a building for the county jail, court rooms for Insolvency Court, Criminal Court, and Prosecuting Attorney’s Office,” and that thereafter bonds were issued and sold in •that sum; that subsequently, on the 8th day of October, 1919, the commissioners adopted a resolution to submit to the electors the question of policy of expending funds in the sum of $3,500,000, for the purpose of erecting such county building, which the electors voted against; that thereafter, on March 3, 3920, a resolution was adopted to submit the question of policy of expending $2,000,000 for that purpose, which the voters again voted down; and that the same question was subsequently submitted and voted upon under a resolution, and again disapproved by the voters.
    It is then alleged that the building commission caused plans and specifications to be prepared for the construction of the building, but that under such plans and specifications the building cannot be built for the sum of $1,250,000, but will require for its completion several million dollars in excess of that amount; that the expenditure of the amount voted by the people, and for which bonds were sold under the plans and specifications adopted, will only build a partial building, which will be of no utility or value to the public, which partial construction will be a gross abuse of discretion and a wilful, wasteful, illegal and unauthorized application and expenditure of the public funds; and that on the 17th day of February, 1921, the defendants passed a resolution providing that bids should be received and accepted for the erection of a county building, containing the following language: “Whereas the need of a new county, city and juvenile courts building is great * * * and the council of the city of Cleveland * * * has approved the plan of combining of the city criminal establishment now located on Champlain Avenue, with the County’s criminal establishment and the Juvenile Court, which plan the commission deems to be wise, practical and economical, although the cost of the new building is nearly doubled thereby,” etc.
    It is then alleged that the auditor and treasurer, unless restrained by the order of the court, will cause to be drawn from the treasury of the county such sums as may be authorized by the commission in the prosecution of such building.
    The answer admits the official capacity of the prosecutor, of the county commissioners, of the Cuyahoga county building commission, and of the auditor and treasurer; admits the adoption of the resolution to build the county building for the purposes named in the petition, the approval of the electors for the issue, the issuing of bonds in the sum of $1,250,000 for the purpose of constructing the building, and the several subsequent disapprovals by the electors for the issuance of the additional bonds; and admits that the Cuyahoga county building commission has caused plans to be prepared for the construction of a building which cannot be erected for the sum of $1,250,000. And defendants aver that prior to the commencement of this action they had already let contracts for a large portion of the work of erecting the building, and are about to let further contracts therefor, and that they adopted a resolution on the 17th day of February, 1921, wherein it was provided that bids should be received for the erection of said building at a cost in excess of $1,250,000.
    Then follows a general denial, after which are set up allegations of new matter, including an agreement with the city authorities, under provisions of law, for extending the capacity of the building to include the city criminal courts and other activities; then follow many other averments disclosing why it is highly desirable to expend a materially larger sum for the construction of the building than was originally contemplated or planned.
    To the answer a reply was filed, admitting some of the allegations of new matter in the answer and denying others.
    
      Mr. Edward C. Stanton, prosecuting attorney; Mr. George C. Hansen and Mr. Edward J. Thobaben, for plaintiff in error.
    
      Messrs. Mooney, Hahn, Loeser & Keough, for defendants in error.
   Hough, J.

From the state of the record which we have before us the question for determination is Avhether or not, from the conceded and admitted facts in the pleadings, the plaintiff in error is entitled to the relief sought.

The board of county commissioners and the building commission are both creatures of the law, and their duties, authority and power originate from the provisions of the statute, and are bounded and limited thereby.

i In this case, therefore, where the regularity of the proceedings of the commissioners in taking the preliminary steps for the construction of a county jail is admitted, as well as the creation of the building commission, and where the desirability of erecting a building of the quality and character planned by the commission is conceded, the question for determination is whether or not the building commission under the statutes has the authority to do the thing it proposes to do. Or, stated in another way, may the building commission, after the people have voted “in favor of the expenditure of $1,250,000 for the purposes of erecting a building for a county jail, court rooms for Insolvency Court, Criminal Court, and Prosecuting Attorney’s Office,” adopt and carry out a policy for the construction of a county jail on a much more elaborate plan, and involving the expenditure of a materially greater amount of money?

The county commissioners acted under Section 2333, G-eneral Code, which reads as follows:

“When county commissioners have determined to erect a court house or other county building at a cost to exceed twenty-five thousand dollars, they shall submit the question of issuing bonds of the county therefor to vote of the electors thereof.”

The section further provides that if the vote is determined in the affirmative the commissioners shall apply to a judge of the court of common pleas, who shall appoint a building commission.

Section 5638, General Code, also has to do with the power of county commissioners. That section reads in part:

“The county commissioners shall not levy a tax, appropriate money or issue bonds for the purpose of building county buildings * * * the expenses of which will exceed $15,000, except in case of casualty * * * without first submitting to the voters of the county, the question as to the policy of making such expenditure.”

And Section 5642-1, General Code, provides:

“If a majority of the votes cast are in favor of the proposed expenditure, the board of county commissioners shall proceed to issue bonds in any sum not exceeding the amount stated upon said ballots, the proceeds of which shall be used exclusively for the purpose stated upon said ballot.”

Section 2358, General Code, specifically provides that no contract shall be made for any public building at a price in excess of the estimates. The building commission insists that what it has done and what it proposes to do are in exact conformity with the provisions of law; that the contracts let and to be made for the construction of the building will be within the architect’s estimate; that the people by a vote upon the issuance of bonds have approved the policy of the building of a county jail; that the sum of money raised by the issuance of bonds approved by the vote of the people, while entirely inadequate to carry out the plan contemplated by the architect in his estimate and the building commission, can be supplemented by other funds to be furnished by the county commissioners under the authority conferred by Section 2434, General Code. This section, so far as pertinent, provides:

‘ ‘ For the purpose of erecting or acquiring a building * * * for a * * * jail * * * the commissioners may borrow such sum or sums of money as they deem necessary.”

This section concludes with an exception, which provides that if the levy be for the proposed building of a detention home, or additional land for an infirmary or county children’s home, “the commissioners without first submitting the question to the vote of the county may levy a tax for either or both of such purposes,” not exceeding a certain amount.

This exception, as well as other considerations, makes it clear that the section itself and the power granted therein are subordinated to the provisions of Section 2333, and must be read in pari materia with that section. Section 2434, General Code, therefore does not give the county commissioners blanket power to issue bonds. That power is limited and circumscribed by the provisions of Sections 2333 and 5638, General Code.

But the building commission further insists that if it be determined that the necessary funds cannot be raised under the power given under Section 2434, General Code, then, in that event, the commission and the county commissioners, at an appropriate time subsequent, will again submit to the voters of Cuyahoga county the question of issuing the $2,000,-000 or more additional bonds necessary to complete the building in accordance with the plan of the commission.

This of course has been done three several times, and three several times has been voted down and disapproved by the people.

The electors of Cuyahoga county did approve the policy of building a county jail, but this approval was not one in the abstract, or in blank, but carried with it other requirements and limitations. The approval contemplated the construction of a county jail under plans and estimates carrying an expenditure of money limited to $1,250,000. To carry forward the plan of the building commission would bring about the partial construction of a county jail, a building only partly built, perhaps without, windows, probably without roof — unenclosed and useful for no purposes whatever; uninhabitable either by the officers of the law or the breakers of the law.

The conclusion is obvious. It would mean either a useless expenditure of public funds or driving the citizens of Cuyahoga county into voting further bond issues to complete such building, in order to make of use and value their funds already expendéd. Instead of exercising voluntary franchise, the electors would be put in the position of exercising involuntary franchise. Such a result was neither intended nor provided for by the legislature.

The legislature provided that the contracts let must be within the limits of the estimates adopted, and a construction of the provisions of the statutes clearly indicates a limitation of the estimate within the amount expendable for the given purpose, and the amount expendable for such purpose is substantially limited to that approved by the electorate of the political subdivision.

The same method of reasoning was employed by , this court in the case of State, ex rel., v. Pierce, Aud., 96 Ohio St., 44, wherein it was held:

“1. Where the statute places an express limitation upon the amount of money to be expended on any public work by any officer, or board, the contractual power of such officer, or board, is fixed by such statutory limit. * * *

“3. In case of doubt as to the right of any administrative board to expend public moneys under a legislative grant, such doubt must be resolved in favor of the public and against the grant of power.”

From the admitted facts in the pleadings, we are dealing not with a question of discretion, or want of discretion, on the part of the building commission, but with the question of the limitation of power of that commission as granted by the legislature.

The building commission has exceeded, and is about to exceed, its power, and the plaintiff in error is entitled to the relief prayed for, and the defendants as members of the Cuyahoga county building commission are permanently enjoined from entering into any contracts and agreements or from expending any public funds in connection with the construction of any public building under the plans and specifications involving the expenditure of more than an aggregate sum of $1,250,000, and the defendants, John A. Zangerle, as auditor, and John J. Boyle, as treasurer, of Cuyahoga county, are enjoined from issuing any checks for the payment of any public funds at the order of such county building commission, in connection with the construction of any public building under the plans and specifications involving the expenditure of more than the aggregate sum of $1,250,000. The judgment of the court of appeals of Cuyahoga county is reversed.

Judgment reversed.

Marshall, C. J., Johnson, Wanamaker, Robinson, Jones and Matthias, JJ., concur.  