Shepard Paint Co. v. Board of Trustees of Franklin County Veterans Memorial

• Decision Date: 21 April 1950
• Citation: 100 N.E.2d 248,88 Ohio App. 319
• Parties: , 45 O.O. 109 SHEPARD PAINT CO. et al. v. BOARD OF TRUSTEES OF FRANKLIN COUNTY VETERANS MEMORIAL et al.
• Court: Ohio Court of Appeals

Page 319

88 Ohio App. 319

100 N.E.2d 248, 45 O.O. 109

SHEPARD PAINT CO. et al. v. BOARD OF TRUSTEES OF FRANKLIN COUNTY VETERANS MEMORIAL et al.

Court of Appeals of Ohio, Franklin County.

April 21, 1950.

Syllabus by the Court.

1. The word, 'purchase' has two significations, a popular restricted one and a legal enlarged one. In popular acceptance the term means the transfer of property from one person to another for a valuable consideration; the legal or enlarged meaning encompasses every mode of acquisition known to the law, except that by which an heir, on the death of an ancestor, is by law substituted in his place as owner.

2. Sections 3059, 3059-1 and 3064-2, General Code, are in pari materia, and the word, 'purchase,' as used in those sections, is used in its legal sense and does not preclude the authority to pay for property acquired by appropriation proceedings.

3. The right of eminent domain is strictly statutory, and, in an appropriation proceeding, it is not necessary to allege that money is available to purchase the site condemned.

4. The necessity for and extent of property to be taken by eminent domain are questions for legislative determination, and, in the absence of fraud, bad faith or abuse of discretion, such determination will not be disturbed by the courts.

5. Proceeds from tax levies or bond issues which result from an exercise of the power granted by Sections 3059 and 3059-1, General Code, to levy taxes and issue bonds for the purpose of 'purchasing' a site for war memorials, may be used to pay for property acquired by appropriation proceedings.

John H. Summers and Wright, Harlor, Purpus, Morris & Arnold, Columbus, for appellants.

Ralph J. Bartlett, Pros. Atty., Robert P. Barnhart and Joseph J. Poorman, Columbus, for appellees.

MILLER, Presiding Judge.

This is an action to enjoin the Board of Trustees of the Franklin County Veterans Memorial from proceeding with its action in the Probate Court ot appropriate certain real property for public use and for an assessment for the compensation for the same.

On October 6, 1945, the county commissioners of Franklin county, Ohio, pursuant to the provisions of the Veterans Memorial Act, Sections 3059 to 3069-1, General Code, by resolution declared a necessity for proceeding with the establishment of such a memorial and for the issuance of a $4,500,000 bond issue. In view of their desire to place the levy for this bond issue outside the 10-mill limit, the question was submitted to a vote of the electorate at the November 1945 election. A favorable vote was received. Upon certification of the results of the election the county commissioners appointed a board of trustees as provided by Section 3061, General Code, for the purpose of establishing the memorial. The trustees submitted to the county commissioners plans for the site to be acquired and the plans were approved by the commissioners on April 2, 1946. Later the design of the building was completed and submitted to the county commissioners and approved by them on June 20, 1947. Bonds to the extent of $3,500,000 were issued and sold and the proceeds deposited in the memorial fund established by the provisions of Section 3064, General Code. A portion of this fund has already been expended for the acquisition of certain portions of the proposed site and for incidentals. The plaintiff Sigmund Ornstein is the owner of four parcels of property included in the proposed site.

On November 2, 1949, the defendants herein filed their petition in the Probate Court for the purpose of condemning Ornstein's four parcels of real estate and to have a jury assess the amount of compensation to be paid to the owner. The plaintiffs thereupon filed a petition in the Common Pleas Court requesting an injunction against the further proceedings in the condemnation case in the Probate Court, on the grounds that the proceedings and the assessment compensation would be a confiscation of the property without due process of law and in violation of the Constitution and statutes of the state of Ohio.

The plaintiffs set forth the following four grounds of objection:

'1. There is no money in said memorial fund except the money resulting from said bond sales by said board of commissioners, which sales and levies of taxes in connection therewith were for the sole purpose of purchasing a site * * *, and none of such money may be used to compensate plaintiffs for any of their property sought to be acquired by condemnation.

'2. The amount of money allotted by said board of commissioners in their resolution of October 6, 1945, for the purchase of the site of said veterans memorial has been entirely expended by said borad of trustees in the purchase of other lands and no money is available to compensate the plaintiffs for any of their property sought to be acquired by condemnation.

'3. Said board of commissioners has not approved the design of the proposed veterans memorial which said board of trustees intends to erect.

'4. In the declaration of necessity and determination to take parcel No. 1 said board of trustees have abused their discretion and are acting oppressively and in bad faith.'

It is plaintiffs' claim that the only remedy available is by injunction to stop further condemnation proceedings; and that the Probate Court has no power to determine the legality of the proceedings, but is only authorized to fix the value of the property sought to be condemned.

The first claim made is that the proceeds from the bond issues cannot be used in payment for any land acquired through condemnation proceedings, since the enabling statutes, Sections 3059 and 3059-1, General Code, refer to the levying of taxes 'For purchasing a site' and for the issuing of bonds 'for the purpose of purchasing a site.'

Section 3064-2, General Code, provides in part: 'The board of trustees may acquire by purchase condemnation, or otherwise, any necessary site or sites for such memorials.'

From this it is argued that the General Assembly must have intended, in accordance with the provisions of Sections 3059 and 3059-1, General Code, that the proceeds of taxes or bond issues were restricted in their use to the acquisition of property by ordinary purchase and could not be used to pay for property acquired by condemnation proceedings, as otherwise it would have provided in Sections 3059 and 3059-1, General Code, that the money raised might be used to acquire property by purchase, condemnation, or otherwise. If this is the proper interpretation to be placed on Sections 3059 and 3059-1, General Code, then there are no funds available to pay for the plaintiffs' property. The trial court stated, and we think correctly so, that under such an interpretation it would be virtually impossible to carry out the provisions of the act, if the owners of any of the property within the chosen site were unwilling and refused to sell; that since the statute specifically grants power to the trustees to carry out the provisions of the act, to secure property by condemnation, it is a reasonable conclusion that the General Assembly was not granting a meaningless power but must have intended to include the power to pay the assessed valuation of the property. In determining the express intention of the General Assembly, the sections of the Code involved must be construed in pari materia. The authorities seem to be in agreement that the word, 'purchase,' has two significations, a popular but restricted one and a legal but enlarged one. A 'purchase' in the popular acceptance of the term is the transfer of property from one person to another by his voluntary act and agreement founded upon a valuable consideration. The legal or enlarged definition if found in 3 Washburn, Real Property (6th Ed.) 3, Section 1824: 'Purchase including every mode of acquisition known to the law, except that by which an heir, on the death of an ancestor, becomes substituted in his place as owner by the act of the law.'

In Sutherland's Statutory Construction (2d Ed.) 753, Section 395, it is stated that words in common use, and also having a technical sense, will, in acts intended for general operation and not dealing specially with the subject to which such words in their technical sense apply, be understood primarily in their popular sense, unless they are defined in the act or a contrary intention is otherwise manifest. It is our conclusion, in giving consideration to the various sections of the Code applicable to the matter, that the word, 'purchasing,' in Sections 3059 and 3059-1, General Code, was used in its technical or broader sense. We think that it was the intention of the General Assembly in this case to confer upon the board of trustees the right to condemn property for the purpose of providing a site for the memorial and that the authority to issue bonds for the purchase of the site included the right to pay the assessment. To interpret the term, 'purchase,' in the narrow sense as advanced by counsel for the plaintiffs, the object of the statute would in many cases be defeated.

In the case of the United States v. 2.74 Acres of Land, D. C., 32 F.Supp. 55, 57, it was held 'statutory authority to acquire land for a public use by purchase is authority to acquire by condemnation.'

We are of the further opinion that even if the funds now available in the memorial fund could not be used for the purpose of paying the purchase price set in the condemnation proceedings, such fact would still not constitute a ground for the issuance of an injunction restraining the proceedings.

Counsel for the plaintiffs cite State ex rel. MacDiarmid v. Eastman, 118 Ohio St. 121, 160 N.E. 626, as authority for the position they have...