State Ex Rel v. Turner
| Decision Date | 04 February 1916 |
| Docket Number | 15063 |
| Citation | 113 N.E. 327,93 Ohio St. 379 |
| Parties | The State, Ex Rel. The Clemmer & Johnson Co., v. Turner, Attorney General. |
| Court | Ohio Supreme Court |
State armory - Execution of contract, delivery of deed for site and payment of money - State estopped to question constitutionality of law, when - Title of state to property cannot be questioned, when - Authority of state armory board -To adopt plans for building - Including auditorium in armory -Issue of abuse of discretion not raised, when - Pleading.
1. 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, approved and followed.)
2. 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 City, 58 Ohio St. 430; paragraph 3 of syllabus approved and followed.)
3. The state armory board is authorized by the statutes of this state to adopt such plans for the construction of an armory building as will in its judgment meet the needs of the organized militia of the state in the locality in which such building is to be constructed. In the absence of fraud or abuse of discretion, the judgment of the state armory board is final upon this subject and cannot be reviewed by the courts.
4. An averment in a pleading that the plans adopted by the state armory board for an armory building include an auditorium that will be available for civic purposes, does not tender any issue that the state armory board, in adopting such plans, abused its discretion or was guilty of any fraudulent cOnduct in reference thereto.
IN MANDAMUS.
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 sate; 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, 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 safekeeping 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.
Mr. Freeman T. Eagleson; Mr. Francis Seiberling and Mr. W. E. Young, for relator.
Mr. Edward C. Turner, attorney general; Mr. Henry S. Ballard and Mr. Charles Follett, for defendant.
The first defense contained in the answer of the defendant to the relators petition challenges the validity of the title of the state to the armory site conveyed to it by the city of Akron.
If this title is not a valid one then the attorney general properly refused to prepare a contract and bond under which money of the state will be expended in the construction of an armory building upon land not owned by it.
It is admitted that the city has procured and paid for a site, worth approximately $65,000, and deeded the same to the state for the purpose of building an armory thereon, and that the deed has been accepted by the state armory board and placed of record.
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