State ex rel. Clemmer & Johnson Co. v. Turner, No. 15063.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtDONAHUE
Citation93 Ohio St. 379,113 N.E. 327
Docket NumberNo. 15063.
Decision Date04 February 1916
PartiesSTATE ex rel. CLEMMER & JOHNSON CO. v. TURNER, Atty. Gen.

93 Ohio St. 379
113 N.E. 327

STATE ex rel. CLEMMER & JOHNSON CO.
v.
TURNER, Atty. Gen.

No. 15063.

Supreme Court of Ohio.

Feb. 4, 1916.


Petition for peremptory writ of mandamus by the State, on relation of the Clemmer & Johnson Company, against Edward C. Turner, Attorney General. Peremptory writ allowed.

On the 20th day of November, 1915, the relator, the Clemmer & Johnson Company, a corporation, filed a petition in this court asking that a peremptory writ of mandamus issue to the defendant, Edward C. Turner, directing him to prepare a contract to be entered into between the relator and the state armory board for the building of an armory at Akron, Ohio, and also a bond to be given by the relator, as contractor, for the faithful performance of its contract.

The petition avers that the relator is a corporation duly organized and existing under the laws of Ohio, that the defendant is the duly elected, qualified, and acting Attorney General of Ohio, and that it is an official duty enjoined upon the attorney general by section 5259, General Code of Ohio, to prepare this contract and bond.

The petition further avers an arrangement between the city of Akron and the state armory board, by the terms of which that city was to procure and deed to the state a site for an armory and turn over to the state armory board $50,000 in money for use in constructing an armory thereon, that the city has fully performed its part of this agreement to the acceptance of the state, and that the General Assembly of this state has appropriated $115,000 for the erection of an armory upon the site deeded to the state by the city of Akron.

It is further averred that it is agreed and understood between the city of Akron and the state armory board that an armory building would be constructed of such design as would be suitable for the drill and instruction of the police and firemen of the city of Akron, with an auditorium for civic purposes, available to the city of Akron for such purposes, and that such building will be a benefit to the city of Akron greatly in excess of the cost to it; that the plans for an armory building of this character were prepared and adopted, and the state armory board duly advertised for bids for the construction of an armory according to these plans on the site in the city of Akron provided by that city and deeded to the state; that the relator was the lowest bidder, and the state armory board awarded to this relator the contract for the construction of this armory at the contract price of $142,194, on condition that said bidder file with said contract a good and sufficient bond in the sum of $72,000, in accordance with the law in such cases made and provided, subject to the approval of the Attorney General of Ohio. The defendant waived the issue of an alternative writ, and filed an answer to the relator's petition, containing five separate defenses.

The first defense attacks the constitutionality of section 3631, Page & A. General Code.

The second defense avers that $75,000 of the money appropriated by the General Assembly of Ohio is not available until the citizens of Akron shall have deeded to the state of Ohio a lot suitable for the site of such armory, with which condition the citizens of said city have not complied; but this defense admits that the city of Akron has deeded, or attempted to deed, to the state of Ohio a site worth $65,000, as pleaded in the relator's petition.

The third defense avers that the contract calls for the sum of $142,194 to be paid in part from the contribution of $50,000 to be made by the citizens of Akron, which said sum has not been contributed to the adjutant general of Ohio, but only placed to his credit, and that therefore the contract cannot be prepared by the defendant which would call for the payment of said sum.

The fourth defense avers that the premises described in the petition are part of the premises acquired in 1912 by the city of Akron by appropriation proceedings for the use of the corporation for public halls and offices, and were not acquired by said city for the purpose of donating same to the state of Ohio, and that the deed purporting to convey the same to the state of Ohio does not convey a fee-simple title to said state.

The fifth defense avers that the plans and specifications for the erection of this armory contain provisions for an auditorium suitable for civic purposes for the city of Akron; that said state armory board is without authority in law to erect any building other than one for the purpose of drill and the safe-keeping of arms, clothing, equipments, and other military property issued to the organizations of organized militia to be housed therein and rooms for the Grand Army of the Republic and United Spanish War Veterans, and any attempt on the part of the state armory board to provide in such building an auditorium for civic purposes is without authority of law.

The relator filed a general demurrer to this answer and to each separate defense in said answer contained, and the cause was submitted to this court upon this demurrer.



Syllabus by the Court

Where the state has entered into a contract to build an armory building in a city, upon the conditions that a site be provided and that $50,000 in money be contributed by the citizens to the cost of construction, and the city, in pursuance of such contract, has executed and delivered a deed for such site to the state, and the same has been accepted by the state armory board and placed of record, and the citizens have paid $50,000 in money to the credit of the adjutant general of the state, to be expended in the construction of an armory building as agreed upon, the state is estopped to question the constitutionality of the law authorizing the city to make such conveyance. Tone v. Columbus, 39 Ohio St. 281,48 Am. Rep. 438, approved and followed.

Where a taxpayer has not timely intervened to prevent a city from conveying title to property for an armory site to the state, and the deed has been actually executed and delivered by the city and accepted by the state, neither party to the transaction can question the title of the state to the property so conveyed. Markley v. Village of Mineral...

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15 practice notes
  • New York Cent. R. Co. v. City of Bucyrus, No. 23796.
    • United States
    • United States State Supreme Court of Ohio
    • May 17, 1933
    ...under it, may not question its constitutionality.’ 12 Corpus Juris, 769; State ex rel. Clemmer & Johnson Co. v. Turner, Atty. Gen., 93 Ohio St. 379, 113 N. E. 327. In that case the state of Ohio entered into a contract to build an armory in a city, the site thereof to be provided by the......
  • Brann v. State
    • United States
    • Supreme Judicial Court of Maine (US)
    • January 14, 1981
    ...of its own legislative act. See Sweeney v. State, 251 N.Y. 417, 167 N.E. 519 (1929); State ex rel. Clemmer & Johnson v. Turner, 93 Ohio St. 379, 113 N.E. 327 We do question whether the state has standing to attack the constitutionality of the private resolve. One who attacks the constit......
  • City of Columbus ex rel. Falter v. Columbus Metro. Hous. Auth., No. 170309.
    • United States
    • Court of Common Pleas of Ohio
    • June 15, 1946
    ...not appropriate a mere easement in this property. It appropriated and paid for a fee-simple estate therein.’ State ex rel. v. Turner, 93 Ohio St. 379, at page 386, 113 N.E. 327, 329. The ordinance in question and the contract made pursuant thereto are clearly within the power of the city to......
  • State v. Burch, 16776.
    • United States
    • Washington Supreme Court
    • March 3, 1922
    ...Ann. Cas. 122, the Supreme Courts, respectively, of Ohio and Florida, took the opposite view. In a later case, however, State v. Turner, 93 Ohio St. 379, 113 N.E. 327, the Ohio Supreme Court sustained the right of the city to expend money for an armory to be located within its corporate lim......
  • Request a trial to view additional results
15 cases
  • New York Cent. R. Co. v. City of Bucyrus, No. 23796.
    • United States
    • United States State Supreme Court of Ohio
    • May 17, 1933
    ...under it, may not question its constitutionality.’ 12 Corpus Juris, 769; State ex rel. Clemmer & Johnson Co. v. Turner, Atty. Gen., 93 Ohio St. 379, 113 N. E. 327. In that case the state of Ohio entered into a contract to build an armory in a city, the site thereof to be provided by the......
  • Brann v. State
    • United States
    • Supreme Judicial Court of Maine (US)
    • January 14, 1981
    ...of its own legislative act. See Sweeney v. State, 251 N.Y. 417, 167 N.E. 519 (1929); State ex rel. Clemmer & Johnson v. Turner, 93 Ohio St. 379, 113 N.E. 327 We do question whether the state has standing to attack the constitutionality of the private resolve. One who attacks the constit......
  • City of Columbus ex rel. Falter v. Columbus Metro. Hous. Auth., No. 170309.
    • United States
    • Court of Common Pleas of Ohio
    • June 15, 1946
    ...not appropriate a mere easement in this property. It appropriated and paid for a fee-simple estate therein.’ State ex rel. v. Turner, 93 Ohio St. 379, at page 386, 113 N.E. 327, 329. The ordinance in question and the contract made pursuant thereto are clearly within the power of the city to......
  • State v. Burch, 16776.
    • United States
    • Washington Supreme Court
    • March 3, 1922
    ...Ann. Cas. 122, the Supreme Courts, respectively, of Ohio and Florida, took the opposite view. In a later case, however, State v. Turner, 93 Ohio St. 379, 113 N.E. 327, the Ohio Supreme Court sustained the right of the city to expend money for an armory to be located within its corporate lim......
  • Request a trial to view additional results

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