State ex rel. Speeth v. Carney

• Decision Date: 20 April 1955
• Docket Number: No. 33926,33926
• Parties: , 56 O.O. 194 The STATE ex rel. SPEETH et al., Board of County Com'rs of Cuyahoga County, v. CARNEY, Aud.
• Court: Ohio Supreme Court

Page 159

163 Ohio St. 159

126 N.E.2d 449, 56 O.O. 194

The STATE ex rel. SPEETH et al., Board of County Com'rs of Cuyahoga County, v. CARNEY, Aud.

No. 33926.

Supreme Court of Ohio.

April 20, 1955.

Syllabus by the Court.

1. Where a Board of County Commissioners, pursuant to the provisions of the county subway statute (Section 2433-3, General Code [Section 307.201, Revised Code]), adopts a resolution of necessity to construct a subway within the county, not to be used by the county itself but by publicly owned transportation systems, at a rental to be fixed by such board, to serve the general transportation purposes of the county, such action in the absence of an affirmative showing of an abuse of discretion on the part of such board does not import a gift of such subway to such transportation system such as would make the construction of the subway and the contractual arrangement for its use invalid, and in such case a presumption obtains that the board will fix terms under which the operation of the subway will be lawful.

2. Even though, under the authority of the county subway statute (Section 2433-3, General Code [Section 307.201, Revised Code]), the proposed subway is to be constructed by the county but used by municipally owned transit systems for public transportation under the terms of a contract for that purpose, the statute is not thereby in conflict with Section 6, Article VIII of the Ohio Constitution, which inhibits a county from raising money for or lending its credit to or in aid of a joint stock company, corporation or association.

3. County improvements may be authorized, constructed and maintained by the county, although they may directly benefit only a part of the taxpayers of the county, and the fact that the cost of construction and management of such improvements is borne by county taxes does not contravene the rule of uniform taxation according to value contained in Section 2, Article XII of the Ohio Constitution.

4. Public transportation is a proper county purpose and function, and the fact that Section 4, Article XVIII of the Ohio Constitution, specifically gives municipalities but not counties power to construct and operate 'any public utility' does not, by inference, deny or invalidate power given to counties by legislative authority to construct and operate subways to be used for public transportation purposes.

5. Although a statute, under some applications, might be unconstitutional, it will not be so held in a case which does not involve an unconstitutional application of the statute.

6. In the absence of contract to that effect, there is no power in a governmental subdivision to require public utilities in its public streets to relocate facilities at their own expense to accommodate the proprietary public utility operations of such subdivision, but a governmental subdivision may lawfully contract with such public utilities for reimbursement for any such necessary expenses.

7. Under Section 2293-10, General Code (Section 133.21, Revised Code), providing that, before any resolution, ordinance, or other measure of a political subdivision providing for the issuance of bonds or notes is adopted, the fiscal officer shall certify to the bond-issuing authority the maximum maturity of such bonds, such certificate need not be issued before the adoption of the resolution of necessity for the issuance of the bonds, but only before any resolution or ordinance or other measure is adopted providing for the issuance of the bonds.

8. A resolution of necessity which provides for the 'construction of subways' rather than for the 'construction of a subway' properly expresses a single and not a multiple purpose, within the meaning of Section 2293-20, General Code (Section 133.10, Revised Code).

9. In any public construction project requiring engineering or professional services, such services are considered as a necessary part of the cost of the construction and may be lawfully paid for out of public funds provided for the cost of such construction.

10. In the absence of evidence to the contrary, public officials, administrative officers, and public authorities, within the limits of the jurisdiction conferred upon them by law, will be presumed to have properly performed their duties in a regular and lawful manner and not to have acted illegally or unlawfully, and, it will be presumed that public authorities, in determining the advisability of constructing a public project, have considered the necessary facts and have sufficiently satisfied themselves as to the propriety and feasibility of the construction, as a predicate for the issuance of bonds or notes to pay the cost thereof.

11. Proceedings properly instituted under existing statutes are 'pending proceedings' and are not affected by a repeal of such statutes, where the repealing statute does not provide therefor, but may be completed thereunder as though they had not been repealed.

12. The fact that the journal record of duly adopted proceedings of a Board of County Commissioners, with reference to the construction of a county subway and the issuance of bonds for the payment thereof, was not signed or certified by the proper officials does not invalidate the proceedings.

13. A bond resolution to cover the cost of a public construction, which provides that during the period such bonds are to run there shall be levied a direct tax annually sufficient for the payment of principal and interest on such bonds to the extent the income from the improvement to be constructed is not sufficient therefor, complies with Section 11, Article XII of the Ohio Constitution, providing for the levy and collection through taxation of an amount sufficient to pay the interest and sinking fund for the final redemption of such bonds at maturity.

The relators are members of the Board of County Commissioners of Cuyahoga County and shall herein be referred to as the relator.

The relator instituted this action in mandamus in this court by filing a petition to compel the respondent, Auditor of Cuyahoga County, to execute a $500,000 one-year note of the county dated February 10, 1954, to be negotiated for the purpose of raising preliminary funds for the construction of a county subway. The issues involve primarily the constitutionality of the statute authorizing such subway to be constructed.

The pertinent parts of the county subway statute, hereinafter called the subway act, Section 2433-3, General Code, 125 Ohio Laws, pp. 217, 219, Section 307.201, Revised Code, giving relator authority to issue the bonds and construct the subway, and the pertinent parts of relator's resolution adopted February 18, 1954, pursuant to the provisions of Section 133.32, Revised Code, authorizing the issuance of a note in anticipation of the issuance of a like amount of bonds for the construction of the proposed subway, so far as necessary to a determination of the pertinent issues involved in the instant case, will be quoted in the course of the opinion.

The note was authorized by relator's resolution of February 18, 1954, in anticipation of the issuance of a first installment of $500,000 of bonds to be issued for the purpose of constructing a transportation subway in that part of the county popularly known as 'downtown Cleveland.'

The issues in this case are presented by relator's petition, answer of the respondent, and relator's demurrer to the answer. The pertinent properly pleaded facts thus admitted are substantially as follows:

1. Relator is the 'taxing authority' and 'bond issuing authority' of Cuyahoga County.

2. On August 25, 1953, relator adopted and certified to the respondent within the time prescribed by law a resolution declaring the necessity of issuing bonds in the amount of $35,000,000 for the purpose of paying the cost of the construction of subways for transportation purposes, such subways to be owned by the county and to be operated for municipally owned transportation systems. Respondent, on or after August 25, 1953, filed with relator a certificate fixing the maximum maturity of the subway bonds at 25 years and two years for the note issued in anticipation of the issuance of the subway bonds. Such certificate also stated on its face that the life of usefulness is at least ten years.

3. Such certificate of maximum maturity was recorded in relator's loose-leaf journal, but the journal record of the proceedings of August 25, 1953, was not signed by any of the three members of relator or certified as being a true and correct record by its president and clerk.

4. Respondent timely filed with relator a certificate wherein he calculated and certified the average annual levy throughout the estimated 25-year period of the bonds.

5. Relator on August 31, 1953, adopted a resolution submitting to the electors the question of issuing bonds in the sum of $35,000,000 for the purpose of paying all the costs of the construction of subways, under authority of Section 2433-3, General Code, passed as an emergency measure by the General Assembly June 11, 1953, and approved by the Governor June 26, 1953. Said resolution, together with the amount of the average tax levy so estimated and the maximum number of years to retire said bonds, was certified to the Board of Elections of Cuyahoga County within the time required by law, and the board of elections gave due notice of the election. At said election held November 3, 1953, more than 55 per cent of the electors voting on the question voted in favor of the issuance of the subway bonds.

6. On February 18, 1954, relator adopted the note resolution hereinbefore referred to, and the note was accepted by the county treasurer as officer in charge of the bond retirement fund of the county.

Other facts are stated in the opinion.

Frank T. Cullitan, Pros. Atty., Saul S. Danaceau, A. M. Braun, Squire, Sanders & Dempsey, Henry J. Crawford and James F. Preston, Jr., Cleveland, for relator.

Frank T. Cullitan, Pros. Atty....