Cleveland, S. & C. Railway v. City of Norwalk

Feb 18, 1915
Versions:
Young, J.

Demurrer to petition for injunction.

This case comes before me upon a demurrer to the petition, there having been issued, upon the filing of the petition, a temporary restraining order.

The case was originally set down for hearing on whether a temporary injunction should be issued, but by consent was heard upon demurrer.

The plaintiff in its petition relies substantially upon two claims, the first of them being that a preliminary resolution passed by counsel- of the city of Norwalk upon the institution of proceedings that resulted in the issuing of these bonds which is sought to be enjoined was not published.

The second ground is that intrоduced by the amendment to the petition, that prior to the offering of the sale of said bonds to competitive bidding no tender was made of them, or any part thereof, to the commissioners of the sinking fund of the school board of the city of Norwalk, or the Norwalk school boаrd.

Taking up this last proposition first, there is no allegation in the petition or in the amended petition that such a body known as the sinking fund commissioners of the school board was ever appointed. The allegation is, that no tender or offer was made to such a board, and such board did not, in fact, agree to take all the bonds or any part of them.

It is urged in argument, that, notwithstanding the fact that there was a want of such board, yet the statute, Section 7614, General Code, provides that upon failure to create such a board or appoint such a board, the law designates the board that shall act in place of such board, and it is claimed in argument that ‍​​‌‌​​‌​‌‌‌‌​‌​​​​​‌​​‌​​‌‌​‌‌‌​​‌​‌​‌‌​‌​‌​‌‌‌​‍the language of the statute wherein the word “may” is used, should be construed as meaning “must” or “shall,” and that the provision is mandatory. It is also claimed that upon the failure of appоintment or creation of such, board, that the board of education of the city district shall act as such commissioners.

Now, I can not yield to that- construction. The language of the section providing for this board, after designating how the *582board of commissioners shall be selected and appointed, continues: * - •

“Except that, in city or village districts, the board of commissioners of the sinking fund of the 'city or village may be the board of the school^district. ’ ’ • -

My contention is that the designation here is, that the sinking fund commissioners of a village or city shall constitute such commissiоners. True, the statute providing for the board, of sinking fund commissioners of a city or village - does, not designate them as commissioners, but as trustees; their functions are the same, and as I interpret this statute, it means those trustees..

I am also so satisfied from a further reading of the language in this seсtion of the statute: “Such commissioners shall,serve without compensation and give such bond as the board of education requires and approves.”

Now, it seems to me that the Legislature did not intend-that the board’ of' education should be such board of commissioners of. the, sinking fund and fix thеir own bond; that it .meant- that whoever should serve in that capacity their bond should, be accepted ‍​​‌‌​​‌​‌‌‌‌​‌​​​​​‌​​‌​​‌‌​‌‌‌​​‌​‌​‌‌​‌​‌​‌‌‌​‍in the amount fixed by the board of education. It would be an anomaly that an officer or the board itself should designate the amount of security it should give and'.approve its own sеcurity. I do not recall an instance where such a provision is made.

In the case of the board of commissioners of the county, or officers of the county or officers of the city, where bonds are required, the statute points out some specific body apart from them who shall fix and determine the bond and approve it. So that whether we construe this provision as being mandatory or permissive, so far as this ease here is concerned, would make no difference; for plainly, if the court is right in the construction of this statute, and the language is mandаtory, and- the trustees of the sinking fund of the city shall be the trustees of the sinking fund of the board of education, there is no allegation made that they were not offered, these bonds and that they declined to take thémi; there can be no presumption but that *583the'law has been complied with, even though it was mandatory.; so that, so far as the question presented by the amended petition is concerned, the court is constrained to hold that for this reason, there was no violation of the law in the offering of these bonds for sale.

Coming now to the real question, as I consider it, involved in this case, whether or not the law requires the publishing of this resolution, if it does so require it, it must be under Section 4227, General Code, because neither provision of the law and in no other general provision of the code do I find any command with reference to the publication of any ordinance or resolution. True,- many sections of the statutes that have been read before me seem to recognize, or do recognize apparently that as to some resolutions at least there must be a publication thereof. There are many sections of the statutes, without referring to them, which do in terms provide that the resolutions mentioned in said sections shall be published; so that there are provisions of the law with reference to certain resolutions of which the law requires a publication. It is conceded that the statute providing for the resolution that we áre now interested in and investigating does not contain any positive language or declaration that that resolution shall be published, and if it must be published, wre must look elsewhere than to the section providing for the resolution itself.

Section 4227, General Code, provides that:

“Ordinances, rеsolutions and by-laws shall be authenticated by the signature of the presiding officer and clerk of the council.' Ordinances of a general nature, or providing for improvements shall be published as hereinafter provided before going into operation.”

It will be noted that the language of this section reads, “Ordinances of a general nature, or providing for improvements shall be published, ’ ’ etc., and the language is confined to ordinances.

Section 4224, General Code, provides, “The action of council shall be by ordinance or resolution, ‍​​‌‌​​‌​‌‌‌‌​‌​​​​​‌​​‌​​‌‌​‌‌‌​​‌​‌​‌‌​‌​‌​‌‌‌​‍and on the passage of each ordinance or resolution the vote shall be taken by ‘yeas’ and *584‘nays’ and entered upon the journal,” etc., and then the further language, "No by-law, ordinance or resolution of a general or permanent nature, or granting a franchise, or crеating a right, or involving the expenditure of money, or the levying of a tax, ’ ’ etc., shall be passed, etc., unless by a certain provision the rule is suspended.

Now it will be noted, the language is, ‘ ‘ Ordinance or resolution of a general or permanent nature.” That means that there are two kinds — it may be an ordinance or a resolution of a general nature, or it may be one of a permanent nature, or they may be both general and permanent; but the requirement as to publication is only of an ordinance of a general nature; there is no requirement as to its publication under this section of a permanent ordinance not of a general nature.

Now, with this distinction between matters of a general nature and of a permanent nature, is fully recognized in the case of Elyria Gas & Water Co. v. Elyria, 57 Ohio St., 374, to which my attention has been called, the Supreme Cоurt of the state, after discussing the nature of the resolution involved in that case which was one similar to this, say that it is not only of a general nature, but it is also one of a permanent nature; so that they recognized that in that particular ease, it was both of a permanent and оf a general nature, but that there are-ordinances and resolutions that, while they may partake of both natures, yet they may be separate — they may be general in their operation and not permanent, or permanent in their operation and not general. The language here is, it is that only when of general nature publication even of ordinances is required.

It has been urged that resolutions at least of this nature, and resolutions generally, are in fact, ordinances. In a broad sense, it is probably true that they might be designated as ordinances — thе term “ordinance” is the broader term, undoubtedly. There is no abstract reason why an ordinance need be published at all. An ordinance is like a statute enacted by the Legislature of the state; there is no rule of law that requires a statute enacted by the Legislature of the stаte to be published. It is *585supposed that the people of the state will take notice of the enactments of the Legislature, and there is no reason in logic why an ordinance of a village or city, which is, in fact, a statute enacted by a governing body in a community, should be рublished at all, except that the law requires it to be done. We might well suppose thaL a community interested in the acts of its council, were as much bound to take notice of the legislative acts of .its body, as the citizens of the state are bound to take notice of the acts of the General Assembly, and were it not for the specific direction ‍​​‌‌​​‌​‌‌‌‌​‌​​​​​‌​​‌​​‌‌​‌‌‌​​‌​‌​‌‌​‌​‌​‌‌‌​‍of the statute, I do not know of any matter of public policy, or of individual requirement, that compels the acts of legislative bodies to be published at all for the benefit of persons who are subject to the dominion of such body, and when the Legislature enacts a provision governing municipalities, it is supposed -to do so in the purview of common knowledge that a community governed by a council might well be supposed to take general notice of the acts of that сouncil, and it is only where there is an express provision requiring publication of a notice, that publication is required.

Now, in Section 4227, General Code, it is solely “an ordinance,” that requires publication as I have said before. It is argued that a resolution is an ordinance. That may be true, and yet $ie Legislature of the state has seen fit to enact that ordinances shall be set forth in certain formulated words and has decreed the form and provided in what form ordinances of cities and villages shall be; and while it may be said that this is merely directory, yet it-indicatеs that the Legislature designates an ordinance as a different thing from a resolution.

The General Assembly is a legislative body and frequently enacts resolutions that have the force and effect of rules; the Legislature enacts joint resolutions of both bodies, and resolutions of each body and'yet they are not statutes and are not enacted as such, but they are resolutions of such body and recognized as such and fulfill the purpose of resolutions. It seems to me that we should receive the accepted' significance used in common parlanсe, when considering the acts of bodies like this.

*586■ I_ might say, in passing, that county commissioners have the power to enact rules and regulations the violation of which may be visited by penalties, as for instance, such as relate to improved roads — they may provide that wagons cаrrying certain burdens shall be used with tires of certain widths, and if this rule is violated, penalties can be enforced for the violation of these rules and regulations; and yet persons who are interested, must take notice of those rules. There is no provision for their publication. '.

A resolution ordinarily is a declaration of a council, or a legislative body evincing some purpose or intent to do some act not the doing of the act itself. Ordinarily it is the intention to enter upon some enterprise of public moment, something authorized by law that it may do. An ordinancе ordinarily provides a rule of conduct and is a law binding upon a community. They are declarations of a rule of conduct for the enforcement of a right or the creation of a duty. They are not similar and not accepted as such, so that I do not believe, when the Legislature used the word “ordinance” that ordinances of a general nature should be published, it embraced within the purview of such section a resolution of a general and permanent character; and these various sections that I have been referred to, espеcially Section 3502, General Code, where it is said that a certain resolution for taking a census for classification of a municipality as a city or village, shall be published as other resolutions óf a general character, do not impose the duty or obligation of publishing all resolutions; it may be that particular resolution which is to be published as other resolutions that are required to be published. It is recognized, in other words, by the Legislature, that there are some resolutions that the law required to be published, but it is not the rule that all resolutions of every nature shаll be published, but that some must be published, I think that-is all that can be claimed for it.

It was argued before me that the case of Johnson v. Elyria, 6 N. P., 372, decided by the Common Pleas Court of Lorain County, determines the question involved here in favor of the *587plaintiff and should such’ decision be followed, would be decisive in its favor. I am not disposed to follow the cаse, nor do I believe that the contention of counsel is correct. Certainly, the statute, as quoted by the court in its decision upon page 370, wherein it says, "Section 1695, Revised Statutes, provides ‘AH by-laws, resolutions and ordinances of a general nature must be published, and that no ‍​​‌‌​​‌​‌‌‌‌​‌​​​​​‌​​‌​​‌‌​‌‌‌​​‌​‌​‌‌​‌​‌​‌‌‌​‍ordinаnce shall take effect until, the expiration of ten days after the first publication,’ ” if such section of the statute contains such language, the decision of the court might well have been sustained. No such language is. contained in the present statute u,nder review and I submit that it was not contained in the statute in force at that time, but that it was an interpolation therein by the court.

Entertaining these views, I must find that there was no requirement under the law that this resolution should be published and that the issue of these bonds was not illegal, and for 1he reasons assigned, the demurrer will be sustained.