
    The State of Ohio, on relation of John W. Geering and others, v. The Board of Commissioners of Henry County.
    Where county commissioners were authorized by special act of the legislature to build a bridge, and to raise the necessary funds for the purpose bjr successive yearly levies of taxes upon the people of the county, and the commissioners, after levying and collecting a part of the taxes necessary, for reasons in their judgment sufficient, abandoned the purpose of building the bridge, and declined to make further levies—Held, that they will not be compelled by mandamus, at the suit of taxpayers, to build the bridge, or to make further levies to raise the necessary funds therefor.
    Mandamus.
    By the act of April 9, 1873 (70 Ohio L. 347), the board of commissioners of Henry county were “ authorized to levy a tax upon all the taxable property of said county, for the purpose of constructing a bridge across the Maumee river, at or near the village of Texas ”—the levy not to exceed the sum of three mills on the dollar valuation in any one year; and the tax so collected to be “ applied to no other purpose than that for which it is collected.” In 1874, the commissioners of Henry county, in pursuance of the provisions of this act, levied a tax of three mills on the dollar, for. the purpose named, amounting in the aggregate to about $1,200, which tax was subsequently collected, and is now in the treasury of said county, being but a small fraction of the amount necessary to build the bridge. No further levy has been made for the purpose of constructing the bridge, and the commissioners refuse to make any further levies for.that purpose, declaring that they have abancloned the intention of building the bridge. The. present case is an application, on behalf of the relators, who are taxpayers of Henry county, to compel the commissioners to make the necessary additional 'levies, and cause the bridge to be constructed.
    In their answer to an alternative writ of mandamus, issued in the cause, the commissioners base their refusal on the ground, 'among other things, that the county is largely in debt; that the bridge will cost over $60,000; and that, under the present circumstances, the outlay would be much more than the county could afford to make for such a purpose, and would, in their judgment, be unwise, and injurious to the best interests of the county.
    The cause was submitted to the court upon this answer.
    
      TIoag § Rumirtell and Scribner, Hurd § Scribner, for the relator:
    Eor the purpose of building this bridge, a considerable sum of money has been taken from the taxpayers of the county, under the action already had by the commissioners, pursuant to the act of April 9, 1873. This money can be applied to no purpose except that for which it was raised. Constitution, art. 12, sec. 5; sec. 2, 70 Ohio L. 348.
    In order to render the levy already made effective, a further levy should be made, or that which has been taken from the taxpayers will be virtually lost.
    Having set the opei’ative powers of the statute in motion, so that rights have attached under it, the commissioners are bound to proceed .and fully execute the law. R. ánd P. F. Turnpike Go. v. Comm’rs of Sandusky County, 1 Ohio St. 149; The State ex rel., etc. v. Comm’rs of Warren County, 17 Ohio St. 558; The State ex rel., etc. v. Comm’rs of Holmes County, 17 Ohio St. 608; The State ex rel., etc. v. Comm’rs of Perry County, 5 Ohio St. 497; Supervisors v. United'States, 4 "Wall. 435.
    
      Justin H. Tyler, for defendant:
    As to whether a writ of mandamus should be granted, cited Jenkins v. Parker, 10 How. 543 ; 25 Ohio St. 520; 1 Ohio St. 30; 3 Lans. 398, 4 Bans. 272; 37 How. 394; 55 Barb. 197; 57 Barb. 638; 58 Barb. 638.
   Welch, C. J.

Hnder our statute (2 S. & C. 1125), the writ of mandamus can be issued only in cases where the law “ specially enjoins a duty resulting from office, trust, or station.” The act in question enjoins no duty upon the commissioners of Henry county; it merely authorizes them to levy the tax and build the bridge, leaving it to their discretion whether they will exercise the power so given.

In the absence of this statute, the commissioners had power to build the bridge, provided its cost did not exceed $10,000. If its cost would exceed that sum, a vote of the people of the county was required., before it could be built by the commissioners. The only effect of the statute, therefore, was to remove this restriction, and give the commissioners of Henry county the same power to build this particular bridge, which they might exercise without the statute, in the building of bridges costing less than $10,000. In other words, it simply put this bridge, irrespective of its cost, in the category of bridges costing less than $10,000. It imposed no new duty upon the commissioners. This counsel seem to concede; but they contend that, having taken the first step under the act, the commissioners are bound to go on to the end. We do not so understand the law. If such be the law applicable to the building of this bridge, then it must be the law applicable to the building of any and all bridges authorized to be built by the commissioners ; their discretion must, in every case, be exhaustively exercised before they commence the work, no matter what may afterward happen. .They have no locus penitential, and the first step in the work necessitates the last step. Such can not be the law of the case. Surely, the law “specially enjoins” no such duty upon the county commissioners—the duty .to persist in a work deemed useless and injurious. •

Counsel for the relators refer us to the cases of R. & P. Turnpike Company v. Comm’rs of Sandusky County, 1 Ohio St. 149; State ex rel. v. Comm’rs of Warren County, 17 Ohio St. 558; State ex rel. v. Comm’rs of Holmes County, 17 Ohio St. 608; State ex rel. v. Comm’rs of Perry County, 5 Ohio St. 497; and Supervisors v. United States, 4 Wallace, 435, in support of their position. We deem it unnecessary to notice these cases farther than to say that they do not seem to us to be analogous to the present case, or to furnish any authority for the position assumed.

It is also contended that to abandon the building of the bridge* after the levy and collection of the tax, would be in violation of section 5 article 12 of the state constitution, which declares that “ every law imposing a tax shall state distinctly the object of the same, to which only it shall be applied.” It is a sufficient answer to this claim to say that the commissioners have not yet applied, or proposed to apply, this tax to any other object than the building of the bridge in question. When they attempt to do so, it will be time enough to interfere, and restrain them by injunction, or otherwise. In the absence of legislation enabling the. commissioners to dispose of the money. otherwise than in construction of the bridge, I suppose they have power to order its repayment to the taxpayers, by credit upon future taxes, or otherwise. This, however, is a matter we are not called upon to decide. It is enough to say, as we do say, that the commissioners can not be compelled by mandamus to take further steps in the work, so long as, in their judgment, the best interests of the county do not require its completion.

Peremptory writ refused.  