194 N.E. 415 | Ohio | 1935
The only question raised by the demurrer is whether or not the legislation passed by council calling an election to determine whether bonds should be issued for the purpose of "acquiring or constructing waterworks" voiced a dual purpose. If not, the clerk of the municipality could not legally refuse to sign the anticipatory note, and a peremptory writ of mandamus should issue. We will therefore inquire whether or not the words "acquiring or constructing" express a double purpose.
There are some cases in Ohio relating to the subject of inquiry, but before considering them it will prove somewhat instructive to weigh the authorities in other jurisdictions. According to the great weight of authority, expressions such as the one involved here do not express duality of purpose.City of Albuquerque v. Water Supply Co.,
The reasoning of these cases is in substance that the purpose is the single one of establishing municipal ownership of a public utility, and that the method of acquirement, whether by purchase or construction, relates only to the means; in accordance with this principle one scheme of municipal improvement relating to one kind of utility is considered as involving one subject. Although such expression of purpose leaves to the council of a municipality the choice of acquiring a public utility by purchase or by construction, there is still only one objective. In this way the municipality through its council is given the liberty to purchase an existing waterworks if satisfactory terms are offered, or to construct its own plant if it considers the terms disadvantageous. To afford opportunity to the council to select the preferable of two alternatives is to the interest not only of the municipality, but, in many instances, to an existing private utility as well; the latter may choose to sell at a reduced price rather than to incur the risk of ruinous competition from a publicly owned utility enterprise.
There are a few cases in which the contrary rule is adhered to, and citations sustaining both the majority rule and the minority rule are collected by the compiler in an annotation in 5 A. L. R., 538, 549.
Since in the last analysis we are concerned with the law of Ohio, we turn our inquiry in that direction.
In the case of Elyria Gas Water Co. v. City of Elyria,
This provision made the State Constitution the source of municipal power as to utilities, whereas before its adoption municipal authority was derived from statutory enactments. While this change is of no controlling importance the whole situation has been altered by the passage of The Uniform Bond Act, which became effective August 11, 1927, 112 Ohio Laws, 364. Sections 2293-2 (amended 115 Ohio Laws, 52), 2293-19 (amended 114 Ohio Laws, 843) and 2293-20, General Code, found in said act, invite our attention. *211
Section 2293-2 gives the taxing authority of any subdivision power to issue bonds for the purpose of "acquiring or constructing, any permanent improvement which such subdivision is authorized to acquire or construct."
Section 2293-19 provides for submitting to the electors of such subdivision the question of the issuance of any bonds which such subdivision has power to issue; for the passage of a resolution declaring the necessity of such bond issue, and for fixing the amount thereof; and, further, for the certification of the "resolution to the county auditor at least sixty days prior to the election at which it is desired to submit such questions."
Section 2293-20 contains the controlling statutory provisions, and so far as pertinent to the instant case it reads as follows: "The resolution provided for in the foregoing section shall relate only to one purpose. 'One purpose' shall be construed to include * * * in any case all expenditures, including the acquisition of a site and purchase of equipment, for any one utility, building or other structure, or group of buildings or structures for the same general purpose, or for one or more roads, highways, bridges and viaducts included in the same resolution."
The language of this section is plain and free from double meaning; it applies to any bond issue of a subdivision, and a municipality is such a subdivision. This section expressly provides that all expenditures for any one utility shall constitute one purpose.
This court is therefore able to distinguish the case ofElyria Gas Water Co. v. City of Elyria, supra, from the instant case on two grounds, a difference in the phraseology of the resolutions and a change in the basic statutory law.
Our conclusion is that the resolution of the council providing for a vote upon the issuance of bonds does not involve a dual proposition, and, therefore, the demurrer *212 to the petition is overruled and a writ of mandamus is allowed.
Writ allowed.
WEYGANDT, C.J., STEPHENSON, JONES, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.