State ex rel. Bowman v. Bd. of Com'rs of Allen Cnty., 22557.

• Court: United States State Supreme Court of Ohio
• Citation: 177 N.E. 271,124 Ohio St. 174
• Docket Number: No. 22557.,22557.
• Parties: STATE ex rel. BOWMAN v. BOARD OF COM'RS OF ALLEN COUNTY et al.
• Decision Date: 17 June 1931

124 Ohio St. 174
177 N.E. 271

STATE ex rel. BOWMAN
v.
BOARD OF COM'RS OF ALLEN COUNTY et al.

No. 22557.

Supreme Court of Ohio.

June 17, 1931.

Mandamus by the State, on the relation of J. Charles Bowman, against the Board of Commissioners of Allen County and others.-[By Editorial Staff.]

Writ allowed.

This is an original suit in this court seeking the writ of mandamus to compel the board of commissioners of the county of Allen in the state of Ohio to make payment of pastdue interest and past-due installments of principal upon certain bonds issued by the board of commissioners of Allen county, and for that purpose to collect special assessments levied upon property benefited by certain improvements which were made with the proceeds of the sale of said bonds, and requesting that the board of commissioners further be required to provide for the levy and collection annually of general taxes upon all taxable real and personal property in said county in an amount sufficient to pay the principal and interest of said bonds as they mature.

The relator, J. Charles Bowman, in his amended petition alleges that he is the owner of certain of said bonds, and that he brings this action in his own behalf and in behalf of other owners of bonds of the several series issued under authority of sections 6602-1 to 6602-14, General Code, in establishing sewer districts, in constructing, maintaining, and operating in said sewer districts storm and sanitary sewer systems, and in providing a supply of water to the inhabitants of said districts, under authority of sections 6602-17 to 6602-33c, General Code.

The petition alleges that on August 28, 1924, the Westwood sewer district was established by resolution of the board of county commissioners, and that said resolution provided for the construction and maintenance of a sewer system in a district lying immediately west of and adjoining the city of Lima; that a large part of said territory comprising said district was platted into building lots upon which many residences had been built. The petition further alleges that on January 27, 1925, the Lost Creek sewer district was established by resolution of said board, providing for the construction and maintenance of a sewer system for both storm and sanitary sewers, said district comprising 740 acres of land, a substantial part of which was platted into building lots, upon which many residences had been built. The amended petition further alleges that the establishment of said districts and the construction of storm and sanitary sewers were necessary for the preservation and promotion of the public health and welfare of said Allen county, and all the people of said county; that, prior to the construction of said sewer systems, the sewage and storm water of said districts were emptied into streams, whereby the same were polluted, and that it was determined to drain the same into sewage disposal plants where the same could be treated to safeguard the health of the citizens and residents of Allen county. The petition further alleges that, in the establishment of said sewer systems, a sanitary engineer and a consulting engineer were employed to prepare general and detailed plans, and that plans were in fact prepared and approved and adopted by the board of commissioners. The petition further alleges that all and singular the provisions of the statutes in such cases made and provided were faithfully followed. The petition further alleges that on October 18, 1924, the said board of commissioners adopted a resolution declaring the necessity for the construction and maintenance of a public water supply system in said Westwood sewer district, and on the same day passed a further resolution declaring the necessity for the construction and maintenance of a public storm sewer in said Westwood district, and on the same day adopted a further resolution declaring the necessity for a public sanitary sewer system in said Westwood district; that on May 14, 1926, said board passed a further resolution declaring the necessity for constructing a public sanitary sewer system in Oak Hill subdivisions Nos. 1 and 2 in said Westwood district, and on the same date adopted a resolution declaring the necessity for a public sanitary and storm sewer system and water supply system in Rosedale subdivision of said Westwood district; and that on November 2, 1925, the board adopted a resolution declaring the necessity for a public water supply system in said Lost Creek sewer district, and on August 29, 1925, declared the necessity for constructing a public sanitary sewer system in said Lost Creek sewer district.

It is further alleged that each of said resolutions was published in a newspaper of general circulation in Allen county, as provided by law; that all of said improvements were constructed by contract after legal advertisement and bids in accordance with plans and specifications on file, the statutory procedure in all respects being followed; that, upon the letting of the contract, certificates of indebtedness were issued, and upon each of said certificates of indebtedness was printed a certificate showing the purpose for which it was issued; and that said certificates were declared to be full general obligations of the county of Allen, pledging the faith, credit, and revenue of said county, and stating that bonds of said county would be issued in anticipation of the collection of the special assessments in order to retire said certificates of indebtedness, and that such bonds, when issued, would be full general obligations of the county pledging the faith, credit, and revenues of said county.

Said certificates further stated that, in the event said assessments should not be levied, or bonds should not be issued to retire said certificates, general taxes would be levied upon the taxable property real and personal of said county to provide for their payment. Such certificates were made payable to bearer, and were fully negotiable. They were advertised for public sale and sold at public bidding, and from such sale sufficient money was realized to pay for the construction and placing in operation of all said improvements, and said improvements were in fact constructed and put into operation, and each and all of them are still in operation, whereby it is alleged that drainage from said districts has been diverted from said streams and the pollution thereof prevented.

It is further alleged that, after completion of said improvements, the proper steps were taken to levy special assessments upon all the property of said districts in an aggregate amount sufficient to pay the cost of said construction, and that same were certified to the auditor, and by him placed upon the special assessment duplicate of said county for collection. It is further alleged that thereafter, on August 20, 1928, upon the completion of said improvement, six several series of bonds were issued in anticipation of the collection of said special assessments, and to retire said certificates of indebtedness, in the aggregate sum of $1,153,822.91, bearing interest at 5 1/2 per cent. per annum, the principal thereof to be payable in 20 annual installments beginning April 1, 1931. Each of the bonds so issued contained therein printed the following provisions:

‘The said County of Allen is hereby held and firmly bound and its faith and credit and all the taxable real and personal property therein are hereby pledged for the prompt payment of this bond and interest thereon at maturity.’

‘This bond is * * * issued * * * pursuant to the Uniform Bond Act and other pertinent laws of Ohio.

‘It is hereby declared and certified that provision has been made as required by the Constitution and Laws of Ohio for the payment of this bond and interest to accrue thereon by special assessments levied on real estate within said sewer district specially benefited by said improvement and taxes levied and to be levied upon all the taxable property within said county of Allen, and that all acts, conditions and things required to be done and to exist precedent to and in the issuance of this bond and others of the same series have been properly done and performed and do exist in regular and due form, time and manner as required by the Constitution and Laws of Ohio and that the total indebtedness of said county, including this bond and tax levies required to pay the principal and interest of this bond and others of the same series, do not exceed any constitutional or statutory limitations.’

The petition further alleges that on the dates when said bonds were issued the real and personal property of Allen county subject to said general taxation was appraised at $142,185,430; that the installments of interest payable April 1, 1929 and 1930, and October 1, 1929 and 1930, remain unpaid, that the principal of said bonds payable April 1, 1931, in the sum of $52,822.91, remains unpaid, and that the board of commissioners have refused, after demand, to proceed to make the collections of special assessments and have refused to levy and collect general taxes for the amount of said bonds. The petition further alleges that the procedure provided in sections 6602-1 to 6602-14, General Code, is similar to the procedure for other public improvements, and that the relator and other purchasers of said bonds relied upon the validity of said statutes and upon the validity and binding obligation of said bonds upon the political subdivisions issuing the same. The petition further alleges that each and all of said improvements were by the commissioners of Allen county and the state department of health of Ohio deemed and declared to be necessary for the preservation and promotion of the public health and welfare of Allen county, and that the plans and specifications for said improvements were submitted to, and approved by, the department of health of the state of Ohio through the state director of health.

For answer to the petition the commissioners...