State ex rel. Manix v. Tarpen

• Decision Date: 09 June 1885
• Citation: 43 Ohio St. 311,1 N.E. 209
• Parties: STATE ex rel. MANIX v. TARPEN, Auditor, etc.
• Court: Ohio Supreme Court

43 Ohio St. 311

1 N.E. 209

STATE ex rel. MANIX

v.TARPEN, Auditor, etc.

Supreme Court of Ohio.

Filed June 9, 1885.

Mandamus. This is a proceeding in mandamus to compel the auditor of Darke county to issue his warrant upon the treasury of that county in favor of the relator for the sum of $13,898.90, to pay for a site purchased from him by the commissioners of that county for a children's home. The commissioners having taken the necessary steps therefor, a proposition to establish a children's home, and to raise by taxation the sum of $25,000 for the purchase of a site and the erection thereon of suitable buildings, was adopted by the electors of Darke county at the April election, 1882. The tax was levied, and the entire amount was collected before the commencement of this proceeding.

On November 8, 1883, a proposition of the relator to sell about 120 acres of his farm at $115 per acre was accepted by the commissioners, and the further consideration of the proposition was postponed to November 28, 1883, when the commissioners resolved to purchase 120 86-100 acres of his farm at $115 per acre, and that the same should be used as a site for the home. It was further ‘ordered that on presentation of a deed for said lands by said George W. Manix, the auditor of said county issue an order on the county treasurer for said purchase money of $13,898.90.’ A deed duly executed was thereupon delivered by Manix to the commissioners, who accepted it in open session, and caused it to be left for record on the same day with the recorder of the county, who soon thereafter recorded it. Upon the delivery and acceptance of the deed a further order was made reciting these facts, and directing the auditor to draw his warrant on the treasury for the agreed purchase price of the farm. By arrangement between the commissioners and the relator the latter was to remain upon and care for the land so purchased until the commissioners should require actual possession of it, when it was to be wholly surrendered to the latter.

No notice such as is required by section 877, Rev. St., was given by the commissioners of their intention to make the purchase. On the third of December, 1883, and after the transactions above recited, one member of the board of commissioners retired, upon the expiration of his term of office, and his successor was qualified and entered upon the duties of his office. On the fifteenth of December, 1883, the board of commissioners, as then constituted, adopted a resolution in form rescinding, and for the purpose of rescinding, the resolutions of November 28th, purchasing the farm, locating the site, and ordering the auditor to draw his warrant. On the twenty-eighth of November, 1883, after the commissioners had ordered the auditor to issue his warrant, as above stated, legal proceedings were commenced to enjoin the issuing thereof, which were pending until the May term of the district court of Darke county, 1884, when they were finally dismissed. After such dismissal the relator demanded of the defendant that he issue his warrant, according to the order of the commissioners, which was refused. In August, and again on the fourth of September, 1884, the relator notified the defendant that on the ninth of September, 1884, he would apply for an alternative writ herein, and on the tenth of that month such writ was allowed and issued. On the ninth of September, 1884, the commissioners purchased another tract of land as a site for a children's home, for which they paid the money in December, 1884.

The issues joined were tried upon the pleadings and evidence, and the facts admitted or found by the court, so far as they are considered in the opinion, are stated above. The defendant maintained (1) that the failure to give the notice required by section 877, Rev. St., was fatal to the validity of the proceedings of the commissioners; (2) that the commissioners had full power to pass the rescinding resolutions of December 15, 1883, and abandon the contract; (3) that the relator is not entitled to this extraordinary writ of mandamus, but has an adequate remedy at law.

McILVAINE, C. J., and JOHNSON, J., dissenting.[Ohio St. 314]H. J. Booth, George B. Okey, Anderson & Chenoweth, and M. T. Allen, for relator.

J. Riley Knox and D. C. Meeker, for defendant.

OWEN, J.

1. The commissioners proceeded under section 929, Rev. St. This and the following sections, to 950, inclusive, provide a complete scheme for the organization, management, and support of children's homes. The requirement of section 929, that, before the submission of the question of the purchase of a site and the erection of buildings to the electors of the county, notice of such election shall be published four weeks in two or more newspapers of the county, was complied with. Section 877, Rev. St., provides that, ‘before the county commissioners purchase any lands, or erect any building or bridge, the expense of which exceeds one thousand[Ohio St. 315]dollars, they shall publish and circulate hand-bills, and publish in one or more newspapers of the county notice of their intention to make such purchase, erect such building or bridge, and the location of the same, for at least four consecutive weeks prior to the time that such purchase, building, or location is made; and they shall hear all petitions for and remonstrances against such proposed purchase, location, or improvement.’ 68 Ohio L. 103, § 19; 63 Ohio L. 32, § 2.

The defendant maintains that the failure to comply with the requirements of this section is fatal to the validity of the action of the commissioners, and a complete answer to the petition of the relator. It is conceded that the provisions embodied in this section by the revision of 1880 were originally limited to the purchase of lands for, and the erection thereon of, court-houses, jails, and county infirmaries, and the building of bridges. The act of which these provisions were a part relates to this subject alone. The only change effected by the revision is that the words ‘as provided by this act,’ which originally occurred between the words ‘bridge’ and ‘the expenses,’ are omitted. It is contended that the codifying commissioners intended, by the omission of these words from the new section 877, to enlarge its operation. No such requirement of notice as is now found in this section was to be found in any of the provisions relating to children's homes prior to the revision of 1880.

In Allen v. Russell, 39 Ohio St. 337, it is said: ‘Where all the general statutes of a state, or all on a particular subject, are revised and consolidated, there is a strong presumption that the same construction which the statutes received, or, if their interpretation had been called for, would certainly have received, before revision and consolidation, should be applied to the enactment in its revised and consolidated form, although the language may have been changed.’ In Commissioners v. Board Public Works, Id. 632, it is said: ‘Particular and positive provisions of a prior act are not affected by a subsequent statute [Ohio St. 316]in general terms, and not expressly contradicting the provisions of the prior act, unless such intention is clear.’ As the chapter in which section 877 is found was a compilation and consolidation of numerous acts, the retention of the words ‘as required by this act’ would have been an absurdity. Their omission is accounted for upon other grounds than that of an intention to extend the application of the requirements of this section to subjects not originally within its operation. There is no warrant for the conclusion that, by the mere omission of these words, it was intended to apply section 877 to the provisions relating to children's homes, which have been brought into the revision also, without substantial change from their original form.

2. Was the auditor excused from issuing his warrant by the resolution of December 15th, in form rescinding the former order directing him to issue his warrant for the agreed purchase price of the farm? That the power of the commissioners to make and execute the contract for the purchase of the land of the relator was ample, is unquestioned. No considerations of public policy, fraud, or abuse of discretion are shown to have intervened to impair or qualify this power. Before the attempted rescission of their former action by the commissioners, the proposition of the relator to sell his land had been accepted. The deed was duly executed and delivered, accepted by the commissioners, and by them delivered to the recorder to be recorded. Substantially and practically, possession had been delivered to and accepted by the commissioners. They had ordered the auditor to draw his warrant upon the treasurer for the amount of the purchase money. When this order was made, the power of the commissioners over the public funds was exhausted. In fact, everything which either party to the contract could do toward its execution was accomplished. The right of the relator to his purchase money was then complete. It was a right growing out of a contract which the other contracting party had abundant authority to make. It was unaffected by any considerations of fraud, imposition,[Ohio St. 317]or failure of consideration. It was not in the power of the commissioners, by any act of theirs, to divest him of the right which had so vested in the relator, or to impair any of the contract rights or obligations which flowed from the transaction. This is practically conceded; but it is maintained that the order directing the auditor to withhold his warrant impairs no contract right of the relator, but simply affects his remedy.

This position is untenable. The order of the commissioners directing the auditor to draw his warrant on the treasurer in favor of the relator was the only means by which they could fully perform and execute the contract on their part. By this act their power over the subject of the contract was...