Board of Com'rs of Franklin County, Ohio, v. Gardiner Sav. Inst.

• Court: U.S. Court of Appeals — Sixth Circuit
• Citation: Board of Com'rs of Franklin County, Ohio, v. Gardiner Sav. Inst., 119 F. 36 (6th Cir. 1902)
• Decision Date: 02 December 1902
• Docket Number: 1,106.
• Parties: BOARD OF COM'RS OF FRANKLIN COUNTY, OHIO, v. GARDINER SAV. INST.

119 F. 36

BOARD OF COM'RS OF FRANKLIN COUNTY, OHIO, v. GARDINER SAV. INST.

No. 1,106.

United States Court of Appeals, Sixth Circuit.

December 2, 1902

A. T Seymour, for plaintiff in error.

Wm. B Sanders and W. H. Harris, for defendant in error.

This action was brought to recover on certain bonds. The petition was drawn in the usual form of the Ohio Code, upon unconditional promises to pay, and contains a number of causes of action upon the bonds and coupons. It is alleged among other things, that the bonds were issues on the 1st of January, 1894, by the board of commissioners of Franklin county, Ohio, and duly executed and sold by the defendant. The bonds were in the following form:

'State of Ohio.

'No. . . .

'Franklin County.

'North Fourth Street Improvement and Extension Bond.

'Know all men by these presents, that the county of Franklin, state of Ohio, is indebted to the bearer in the sum of one thousand dollars, lawful money of the United States of America, which sum of one thousand dollars the said county of Franklin promises to pay to the said bearer, at the office of the treasurer of said county, on the first day of January, A.D. . . ., but redeemable and payable at any time on or before at the option of said county, with interest at the rate of six per cent. per annum, payable semiannually on the first days of January and July of each year, upon the presentation and delivery of the proper coupon hereto annexed, signed by the commissioner of Franklin county, and countersigned by the county auditor at the said county treasurer's office, Columbus, Ohio. This bond is issued under and by virtue of section seven of an act of the general assembly of the state of Ohio, passed March 26th, A.D. 1890, entitled 'An act to authorize county commissioners in counties in which there are situated cities of the first grade of the second class, to improve roads extending from such cities and other roads and streets in certain cases;' also by virtue of a resolution heretofore passed by the board of county commissioners of Franklin county, Ohio, on the 6th day of August, A.D. 1892; and it is to be paid for by an assessment upon the property abutting on North Fourth street (in Clinton township), from Chittenden avenue to the north line of Indianola Summit addition, for the purpose of improving and extending the same. In testimony whereof, we, the undersigned officers of Franklin county, Ohio, being duly authorized to execute this obligation on its behalf, have hereunto set our signatures, and caused the seal of said county to be hereunto affixed, this first day of January, A.D. 1894.

T. D. Cassidy, 'S. B. Biggert, 'J. B. McDonald, 'Commissioners of Franklin County, Ohio.

'Henry J. Caren, County Auditor.'

The prayer of the petition is for a judgment at law upon the bonds for the aggregate sum of $5,630, with interest and costs. A demurrer was filed to the petition upon the following grounds:

'(1) The act of the general assembly passed March 26, 1890, as amended March 7, 1892, under and by virtue of which the bonds and coupons described in the petition were issued, contravenes article 2, Sec. 26, of the constitution of Ohio, and therefore said bonds and coupons thereto attached are invalid.

'(2) Said act of the general assembly passed March 26, 1890, as amended March 7, 1892, under and by virtue of which the bonds and coupons described in the petition were issued, contravenes the fourteenth amendment of the constitution of the United States, and therefore said bonds and the coupons thereto attached are invalid.

'(3) On all of said bonds sued upon the petition, and to each of which the coupons set out in said petition were attached, there is contained the following condition and recital: 'This bond is issued under and by virtue of section seven of an act of the general assembly of the state of Ohio passed March 26, A.D. 1890, entitled 'An act to authorize county commissioners in counties in which there are situated cities of the first grade of the second class, to improve roads extending from such cities and other roads and streets in certain cases;' also by virtue of a resolution heretofore passed by the board of county commissioners of Franklin county, Ohio, on the 6th day of August, A.D. 1892; and is to be paid for by an assessment upon the property abutting on North Fourth street (in Clinton township), from Chittenden avenue to the north line of Indianola Summit addition, for the purpose of improving and extending same."

Upon hearing, this demurrer was overruled. Afterwards the board of commissioners filed an answer in which they admitted that the bonds were issued under the authority of a certain act of the general assembly of Ohio, entitled 'An act to authorize the county commissioners in counties in which there are situated cities of the first grade of the second class to improve roads extending from said cities and other roads and streets in certain cases' (87 Ohio Laws, p. 113); that the copies of the bonds as set out were true copies thereof; and that the bonds and coupons became due, and the plaintiff was the owner thereof, at the time the petition was filed. By way of special defenses, the commissioners set up further:

'Second Defense. That the total cost of the North Fourth street? improvement, from Chittenden avenue to the north line of Indianola Summit addition in Clinton township, to pay for which the bonds are interest coupons set out in the petition were sold, including the interest on the bonds to the next interest day when the assessments could be collected to pay for the same, amounted to $92,050.85, and that on the 3d day of December, 1895, the board of commissioners of Franklin county, Ohio, levied an assessment of eight dollars eighty-seven cents and eight and twelve-hundredths mills per front foot on all the property fronting and abutting on said improvement, and amounting in all to eighty-three thousand two hundred and seventy-six dollars and seventy cents ($83,276.70). That said assessment so levied was duly placed upon the tax duplicate of Franklin county, Ohio, against the property abutting and fronting on said improvement on North Fourth street from Chittenden avenue to the north line of Indianola Summit addition in Clinton township. That the county treasurer of Franklin county, Ohio, has proceeded to and has collected said assessments as they became due, except the assessments levied against the property of the following named owners: Sallie H. Surguy, Sarah E. and D. R. Summy, the Summit Land Company, Wm. C. Frech, W. E. Smith, Phoebe Thompson, Wm. E. Peters, Henry Boska, A. C. Hartman, Estella M. Berry, Rebecca Ellis, Asa B. Dennison, John W. Thompson, E. W. Dow, Mulby Bros., Cath. C. Cottingham, Eliza Wildermuth, W. Guy Jones, Ira H. Miller, Hanna Goodman, Lynas B. Kauffman, Oscar E. Miles, Harry N. Hills, Fred N. Abbott, Gilbert G. Raynor, Oliva A. Spear, David E. Shrider, Henry Morton, Isaac E. Chaplear et al., Albert K. Neer, Mary A. Meyers, The. A. Simons, Geo. W. Clark, Kate Speilman, and A. E. Dennison,-- which said property owners have filed their petition in the court of common pleas of Franklin county, Ohio, and upon said petitions temporary restraining orders have been issued against the treasurer of Franklin county, Ohio, restraining him temporarily from collecting said assessments levied against said property or any of them; and said restraining orders are still in full force and effect, and have not been dissolved, and for that reason the assessments so levied upon the property of the persons hereinbefore mentioned have not been collected, and the same remain unpaid. That all moneys received from the assessments so levied upon the property abutting on North Fourth Street, in Clinton township, from Chittenden avenue to the north line of Indianola Summit addition, to pay for the improvement thereof, have been appropriated by the proper officers of Franklin county, Ohio, solely to the payment of the interest and redemption of said bonds so issued for said improvement. And said fund is now entirely exhausted, and there remains in the hands of the treasurer of said Franklin county, Ohio, no money which has been collected from said assessments upon the property abutting upon North Fourth street from Chittenden avenue to the north line of Indianola Summit addition, in Clinton township. In addition to the moneys so collected from said assessments, the sum of $7,100 has been applied to the payment of the bonds and interest coupons which were issued to pay for the cost of said North Fourth street improvement from Chittenden avenue to the north line of Indianola Summit addition in Clinton township. By reason of the restraining order so issued as aforesaid, the treasurer of Franklin county, Ohio, has been unable to collect said assessments as they became due. Said treasurer of Franklin county, Ohio, the auditor of Franklin county, Ohio, and the board of county commissioners of Franklin county, Ohio, have done each and every act which has been authorized by the statutes by the state of Ohio to levy and collect assessments provided for by the act of the general assembly which authorized the issuing of the bonds and interest coupons sued upon in the petition, and have failed to collect said assessments only by reason of the temporary restraining order restraining the treasurer of Franklin county, Ohio, from collecting the assessments hereinbefore set out. The board of county commissioners of Franklin county, Ohio, refused to pay the bonds and interest coupons set out in the petition for the reason that the constitution of the state of Ohio (article 10, Sec. 5) provided, 'No money shall be drawn from any county or township treasury except by authority of law.' And

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