Schnoerr v. Miller

• Decision Date: 28 April 1965
• Docket Number: No. 38817,38817
• Citation: 206 N.E.2d 902,2 Ohio St.2d 121
• Parties: , 31 O.O.2d 192 SCHNOERR, a Taxpayer, Appellee, v. Miller, Clerk, et al., Appellants.
• Court: Ohio Supreme Court

Page 121

2 Ohio St.2d 121

206 N.E.2d 902, 31 O.O.2d 192

SCHNOERR, a Taxpayer, Appellee, v. Miller, Clerk, et al., Appellants.

No. 38817.

Supreme Court of Ohio.

April 28, 1965.

Syllabus by the Court

1. Until the bonds are actually issued, the requirement of the Uniform Bond Act that the purpose for which the issue is to be made be set forth is mandatory, and the failure to specifically set forth such purpose in the ballot invalidates the proceedings.

2. The Uniform Bond Act requires that the purpose for which such bonds are to be used be specifically set forth in the resolution, notice of election and the ballot, and the designation of a contemplated municipal improvement as 'a public building' is not a sufficient description of the purpose of a bond issue to comply with the requirement of the act.

In 1961, the officials of the village of Terrace Park became concerned with the safety of the inhabitants thereof in the event of an atomic-bomb attack. It is proposed, therefore, to build a bomb shelter. In order to accomplish this purpose, it was necessary to issue bonds. However, the bond counsel of the village indicated that they would not approve bonds issued for this purpose without the determination by a test case of the authority of the village to issue such bonds. Therefore, on the suggestion of such counsel, the proposed improvement was designated as a public building on the resolution, on the notice of election and on the ballot presented to the voter at the November 7, 1961, election.

The pertinent part of the ballot reads as follows:

'* * * FOR THE PURPOSE OF PAYING FOR THE CONSTRUCTION OF A PUBLIC BUILDING AND FURNISHING AND EQUIPPING THE SAME * * *.'

The bond issue was approved by the necessary vote.

This present action was then instituted in the Court of Common Pleas to enjoin respondents, appellants herein, from issuing the bonds approved at the election on November 7, 1961. The Court of Common Pleas denied the injunction.

The Court of Appeals, on an appeal on questions of law and fact, granted the injunction.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Douglas & Cariler, Milford, for appellee.

John R. Gehrig, Cincinnati, for appellants.

MATTHIAS, Judge.

It is appellants' contention that this present action does not lie. They argue that a specific remedy by statute, an election contest, is provided for the correction of errors, frauds and mistakes which may occur in an election. They urge that no such contest was instituted, and that appellee cannot raise a question as to the validity of the election by injunction. State ex rel. Shriver, County Enger., v. Hayes, 148 Ohio St. 681, 76 N.E.2d 869; State ex rel. Commissioners of Sinking Fund v. Brown, Secy. of State, 167 Ohio St. 71, 146 N.E.2d 287.

The question before the court however is not the validity of the election on this bond issue as such, but whether the proceedings up to and including the election were of such a nature that valid bonds may be issued as a result thereof. In other words, was the bond procedure properly conducted so as to authorize the municipality to issue valid obligations? Necessarily the validity of the election is one of the issues which must be determined, since an election is one of the essential parts of the bond proceedings. State ex rel. City of Cincinnati v. Flick, Aud., 153 Ohio St. 294, 91 N.E.2d 673.

As indicated by Taft, J., in his concurring opinion in State ex rel. Commissioners of Sinking Fund v. Brown, supra, 167 Ohio St. 71, at 76, 146 N.E.2d 287, an election contest is not the exclusive remedy in cases involving the issuance of bonds, if the court finds a failure to do something that statutes mandatorily require as a condition precedent to the issuance of the bonds. See, e. g., State ex rel. Board of County Commissioners of Hamilton County v. Guckenberger, And., 165 Ohio St. 12, 133 N.E.2d 323; State ex rel. Board of Education of Stockdale Local School Dist. v. Wheeler, Clerk, 152 Ohio St. 101, 87 N.E.2d 247; State ex rel. Curren, Dir. of Law v. Rees, Dir. of Finance, 125 Ohio, St. 578, 183 N.E. 432; State ex rel. Jackson v.Board of County Commissioners of Fayette County, 122 Ohio St. 456, 172 N.E. 154; Elyria Gas & Water Co. v. City of Elyria, 57 Ohio St. 374, 49 N.E. 335.

We must, therefore, determine whether the designation of the purpose of a bond issue as 'For the Purpose of Paying for the Construction of a Public Building and Furnishing and Equipping the same' constitutes a sufficient description of the purpose of the bond issue in the resolution placing the same on the ballot and the ballot itself to comply with the requirements of the Uniform Bond Act.

The Uniform Bond Act enumerates certain specific conditions which must be fulfilled in the issuance of bonds. One of such requirements is that the resolution to place such bond issue on the ballot, the publication of the notice of the election and the ballot submitted to the voters must set forth the purpose for which the bonds are to be issued. These statutory provisions are mandatory. State ex rel. Board of County Commissioners of Hamilton County v. Guckenberger, supra; State ex rel. City of Cincinnati v. Flick, Aud., supra. The form of ballot is mandatory. Board of Education of...